Grant v. State

600 So. 2d 397, 1991 Ala. Crim. App. LEXIS 2712, 1991 WL 291727

Opinion

ON RETURN TO REMAND

McMillan, judge.

The trial court has returned an order to this Court after conducting an evidentiary hearing on the appellant’s Rule 20, A.R.Cr. P.Temp., petition. The trial court concluded that the appellant failed to establish any basis for the requested relief. Specifically, the trial court found that the appellant’s witnesses were available and known to the appellant and his attorney at the time of trial and that there was adequate evidence that the appellant was an accomplice and that he aided and abetted in the commission of the offense.

At the hearing, the appellant testified that his newly discovered evidence claim was based on evidence that, after the appellant’s trial, one of the four participants admitted to physically removing the money and the food stamps taken in the theft. However, there was ample evidence, including his own confession, of the appellant’s involvement in the theft. The appellant’s second claim, ineffective assistance of counsel, was supported solely by his statement that his attorney decided it was not necessary to subpoena the other participants in the theft to testify at the appellant’s trial. Under the circumstances, counsel’s decision does not constitute either defective performance and the appellant cannot show any resultant prejudice, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The trial court’s denial of the appellant’s petition is fully supported by the record on remand. The judgment of the trial court is due to be, and it is hereby, affirmed.

OPINION EXTENDED; AFFIRMED.

All the Judges concur, except MONTIEL, J., not sitting.