Dillard v. State

399 So. 2d 911, 1981 Ala. Crim. App. LEXIS 2303
CourtCourt of Criminal Appeals of Alabama
DecidedMay 26, 1981
Docket4 Div. 846
StatusPublished

This text of 399 So. 2d 911 (Dillard 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
Dillard v. State, 399 So. 2d 911, 1981 Ala. Crim. App. LEXIS 2303 (Ala. Ct. App. 1981).

Opinion

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a denial of a petition for writ of error coram nobis, which sought relief from a judgment of conviction and sentence, which was affirmed by this Court after its judgment of reversal on a point not pertinent to the present proceeding had been reversed by the Supreme Court of Alabama. Dillard v. State, Ala.Cr.App., 371 So.2d 946, rev. 371 So.2d 947, on remand, Ala., 371 So.2d 948 (1979).

The lengthy pro se petition gives evidence of considerable study on the part of the petitioner, or someone aiding him, and sets forth in numbered paragraphs each of most, if not almost all, of the grounds upon which post-conviction relief has been held to have been available in the last twenty-five or thirty years. To petitioner’s credit, he supports his separate grounds by apt citations of cases. Not satisfied, however, with his original petition, filed on November 19, 1979, about five months after the affirmance of the judgment by this Court, he filed an amendment to the petition on November 28, 1979, in which he added a number of grounds, including one, with three sub-division paragraphs thereof, not mentioned in the original petition, wherein he expressed grievance against the attorney representing him on the trial for his failure to “protest the jury venire of both the grand, and petit jurys selection process” of the county where he was tried. This ground, as well as other grounds of his petition as amended, was not mentioned in the hearing of the petition and is not presented as an issue on appeal.

In due course, an attorney was appointed for petitioner, arrangements were made for petitioner’s attendance on a hearing and the proceeding was set for hearing, which commenced and was concluded on June 11, 1980, at which time the court took the matter under advisement until July 14, 1980, and then rendered an order and judgment denying the petition.

Issues on the hearing and on appeal relate chiefly to evidence on the trial, as supplemented on the coram nobis hearing, as to petitioner’s being under the influence of drugs at the time of a confession, or a series of incriminating statements, by him, which were introduced in evidence on the trial of the case over the objection of defendant’s attorney.

Two issues are expressly presented on appeal. As stated by appellant, the first issue is: “Was the appellant’s confession involuntary as being drug-induced?” The issue as to the admissibility of the confession and incriminating statements was specifically discussed and definitely determined adversely to petitioner in the opinion after remand in Dillard v. State, supra, at 371 So.2d 949 as follows:

“... [W]e have reviewed the entire record and find that there was a proper Miranda warning given to the appellant, and, likewise, a proper voluntariness predicate laid before the admission of his confession. Lewis v. State, 57 Ala.App. 545, 329 So.2d 596 (1975) and authorities cited, affirmed, 295 Ala. 350, 329 So.2d 599.”

The transcript of the evidence in Dillard v. State, was introduced in evidence on the hearing of the coram nobis proceeding, which the writer has read. It is to be [913]*913observed therein that, although on the cor-am nobis hearing some evidence was introduced on the subject in addition to that introduced on the trial, the contention was stoutly pressed during the trial that defendant was under the influence of drugs at the time of the confession and incriminating statements, and there was evidence on the trial to support that contention. The defendant testified positively that a short while before he made the first of his series of confessions or incriminating statements he had taken “thirty-six sleeping pills and thirty-four dope pills, which a doctor has prescribed for him,” and which he obtained from a pharmacist the day before. There was a lengthy in camera interrogation of the defendant and one of the officers testifying as to the confession and incriminating statements, consisting of forty-five transcript pages and concluding as follows:

“THE COURT: I’m going to deny your motion to suppress the evidence and find that the statement was voluntary and he was adequately apprised of his Constitutional rights, that he did not waive his rights and that at the time that he made the statement he was not under such an influence of drugs or chemicals or narcotics as to make such an impairment of the will and mind as to make him unconscious of the meaning of his words. So, any statements will be admissible.
“MR. HUGHES: All right. We reverse an exception.”

It was also shown in evidence on the trial that soon after his confession and his going with the officers and pointing out to them in detail the place where he shot and buried the alleged victim, he was returned to the jail but before retiring for the night he was sent to a hospital and the contents of his stomach were pumped out.

The only addition to the evidence on the subject presented on the hearing of the coram nobis petition was that of the definite identification of the drugs as “36 Tranxene 2214 milligrams tablets” and “36 Valium 5 milligrams tablets” and an affidavit of a physician as follows:

“That I am familiar with the drug Tranx-ene 22'/2 Milligrams and the effect it has on a particular person. I have prescribed Tranxene 2214 Milligrams many times during the course of my practice of medicine. Tranxene is a tranquilizer and Tranxene 22V2 Milligrams is the strongest dosage of said drug. Such drug relaxes a person and slows his reflexes and reaction time. I would not prescribe over one capsule a day.
“That in my professional opinion, if a person took thirty-four (34) Tranxene 3314 Milligrams capsules within a 24 hour period, it would cloud his consciousness and he would be very drowsy. He would not be coherent and could not make an intelligent decision. Such drug taken in said amount would take effect within three hours.”

This additional information furnished by the evidence on the coram nobis proceeding furnishes the basis for appellant’s only other contention, e. g., that appellant’s counsel on his trial was “constitutionally ineffective for his failure to introduce evidence that appellant had filled prescriptions for drugs and for his failure to introduce evidence as to the name of the drugs and their effect.” Apparently anticipating an opposing contention that such evidence would have been merely cumulative, which does not afford a ground for coram nobis relief (Mains v. State, Ala.Cr.App., 375 So.2d 1299, 1301 (1979)), he attempts to distinguish this evidence from the evidence held to have been cumulative in Mains by saying that the evidence presented on the coram nobis hearing in the instant case “was not cumulative but critically essential to Appellant’s case.” Without attempting a dissertation upon whether the particular evidence constitutes “cumulative evidence” merely, we pay due respect to what authorities have said on the subject as readily found in 10A Words and Phrases, pp. 404 — 413, but are unable to conclude that the evidence was “critically essential” to appellant’s case. Even if viewing it retrospectively we would so consider it, which we do not, the failure to show it on the trial would not entitle appellant to coram nobis relief unless he was thereby [914]*914deprived of the effective representation by counsel to which he was constitutionally entitled.

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Related

Lewis v. State
329 So. 2d 596 (Court of Criminal Appeals of Alabama, 1975)
Lewis v. State
329 So. 2d 599 (Supreme Court of Alabama, 1976)
Mains v. State
375 So. 2d 1299 (Court of Criminal Appeals of Alabama, 1979)
Qualls v. State
371 So. 2d 949 (Court of Criminal Appeals of Alabama, 1979)
Dillard v. State
371 So. 2d 947 (Supreme Court of Alabama, 1979)
Dillard v. State
371 So. 2d 946 (Court of Criminal Appeals of Alabama, 1978)
Dillard v. State
371 So. 2d 948 (Court of Criminal Appeals of Alabama, 1979)

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Bluebook (online)
399 So. 2d 911, 1981 Ala. Crim. App. LEXIS 2303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillard-v-state-alacrimapp-1981.