Flowers v. State

672 So. 2d 1382, 1995 Ala. Crim. App. LEXIS 266, 1995 WL 444587
CourtCourt of Criminal Appeals of Alabama
DecidedJuly 28, 1995
DocketCR-94-0954
StatusPublished
Cited by1 cases

This text of 672 So. 2d 1382 (Flowers 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
Flowers v. State, 672 So. 2d 1382, 1995 Ala. Crim. App. LEXIS 266, 1995 WL 444587 (Ala. Ct. App. 1995).

Opinion

LONG, Judge.

The appellant, Mark Flowers, appeals from the circuit court’s denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In his petition, the appellant attacked his April 1992 conviction for robbery in the first degree and his sentence, as a habitual offender, to life imprisonment without the possibility of parole. The appellant’s conviction was affirmed on direct appeal by this court on October 23, 1992. Flowers v. State, 608 So.2d 764 (Ala.Cr.App.1992).

The appellant raised numerous grounds for relief in his Rule 32 petition, including various allegations of ineffective assistance of trial counsel. The record indicates that the appellant was represented at trial and on appeal by appointed counsel, the Honorable Clay Callaham, who died in September 1994. We cannot agree with the state’s argument on appeal that the appellant’s claims of ineffective trial counsel were procedurally barred as claims that could have been, but were not, raised before the trial court in a motion for new trial. Although Mr. Callaham did allege on direct appeal that he had afforded the appellant ineffective assistance at trial, Mr. Callaham’s argument in this regard was limited to a claim that he was ineffective because, he said, he was hindered from making effective objections at the appellant’s sentencing hearing because of the appellant’s voluntary absence from that proceeding. Flowers, 608 So.2d at 766. It cannot fairly be expected that Mr. Callaham would have filed a motion for new trial alleging that he had made various errors at trial or strongly asserting that his own performance was unprofessional. Therefore, we find that the issues of ineffective counsel were not procedurally barred and could properly be raised in the appellant’s Rule 32 petition. Ex parte Jackson, 598 So.2d 895 (Ala.1992). See Ex parte Besselaar, 600 So.2d 978 (Ala.1992) (when petitioner was represented by same counsel at trial and on appeal, review of claim of ineffective assistance of counsel is available through Rule 32 petition).

An evidentiary hearing on the appellant’s petition was held before the Honorable William Gordon on December 12, 1994, and on January 20, 1995, Judge Gordon entered a thorough and well-reasoned order denying the appellant’s petition. The disposition of the appellant’s claims is discussed below.

I. CLAIMS OF INEFFECTIVE COUNSEL

The appellant raised eight claims of ineffective assistance of trial counsel. Judge Gordon denied each of these claims on the merits. His findings with respect to each claim are set forth below.

“[1.] Flowers contends that Callaham was ineffective at trial because ... he failed to file a motion to dismiss the indictment and to quash the grand jury venire because of systematic exclusion of blacks from the grand jury, and systematic exclusion of black grand jury forepersons[.]
“At the hearing on this petition, Flowers presented no evidence to support his claim of systematic exclusion of blacks from the grand jury or the systematic exclusion of black forepersons from the grand jury. Therefore, his claims of ineffective assistance on these grounds will be denied.”

(C. 36-37.)

“[2.] Flowers contends that Callaham was ineffective at trial because ... Calla-ham failed to ask any of the venire members (a) if any had served on criminal juries within the past 30 years, and (b) if any venire persons or relatives or close friends had been the victim of any type of violent crime[.]
“The Court holds that Mr. Callaham was not ineffective for failing to ask if any of the venire members had served on a criminal jury within the past 30 years. An extensive juror questionnaire is used in this circuit, and, in pertinent part, it requires the venire person to answer whether they have ever served on a grand jury; whether they have ever served on a jury trial before and further requires them to list the year and whether the jury trial was a civil or criminal trial together with the verdict; and it also requires the venire persons to state whether they have ever [1385]*1385served as a foreperson of a jury. Therefore, this information was readily available to Mr. Callaham and there was no need to voir dire the jury on this subject. In addition, the questionnaire also requires the venire persons to disclose whether either the venire persons or a close friend or relative have ever been the victim of a crime, and, if the venire persons respond in the affirmative, they must describe the crime. Therefore, this information was also available to Mr. Callaham before trial and there was no need to voir dire the jury on this point. Therefore, the Court finds that Callaham was not ineffective for failing to question the venire persons on these matters.”

(C. 36-38.)

“[3.] Flowers contends that Callaham was ineffective at trial because ... he failed to strike Willie M. and Patricia D. from the jury[.]
“Initially, the Court notes that the veni-re was asked if any of them was acquainted with Mr. Flowers or any member of his family. None of the jurors responded that they were acquainted with Mr. Flowers. In addition, Ms. D. informed the Court and the lawyers that her husband was a correctional officer; however, there was no indication from Ms. D. that her husband has ever told her about any prior difficulties with Mr. Flowers, assuming that he had prior difficulties with Mr. Flowers. Mr. M. informed the Court that he worked for the Montgomery County Detention Facility about two years ago; however, there was no indication that he knew Mr. Flowers and had any reason to be unfair to Mr. Flowers at trial. Therefore, this ground of Flowers’ motion will be denied.”

(C. 36-39.)

“[4.] Flowers contends that Callaham was ineffective at trial because ... he failed to object to the prosecution striking whites from the jury in violation of Batson v. Kentucky [.]
“At the hearing in this ease, Flowers presented no evidence to establish a prima facie violation of Batson v. Kentucky because the State struck whites from the jury. Therefore, this ground of his petition will be denied.”
“[5.] Flowers contends that Callaham was ineffective at trial because ... he failed to properly investigate the ease by interviewing several alibi witnesses!)]
“The Court finds that Callaham was not ineffective [for] failing to investigate, if he did fail to investigate the facts of this case, and the Court further finds that he was not ineffective [for] failing to interview alleged alibi witnesses.
“The Court has reviewed the record of this trial. In this regard, the pretrial proceedings on pages 3-13 are illuminating and clearly indicate why Callaham may have not investigated this case. In short Mr. Flowers failed to keep scheduled appointments to assist the attorney in the preparation of a defense. Flowers cannot at this time seek to shift the blame for his dereliction to his attorney. If Callaham was in fact unprepared for trial, it was through no fault of Mr. Callaham. Therefore, this ground of [the] petition is denied.”
“[6.] Flowers contends that Callaham was ineffective at trial because ...

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Cite This Page — Counsel Stack

Bluebook (online)
672 So. 2d 1382, 1995 Ala. Crim. App. LEXIS 266, 1995 WL 444587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flowers-v-state-alacrimapp-1995.