Howard v. State

611 So. 2d 1143, 1992 Ala. Crim. App. LEXIS 1102, 1992 WL 228100
CourtCourt of Criminal Appeals of Alabama
DecidedSeptember 18, 1992
DocketCR 91-994
StatusPublished
Cited by2 cases

This text of 611 So. 2d 1143 (Howard 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
Howard v. State, 611 So. 2d 1143, 1992 Ala. Crim. App. LEXIS 1102, 1992 WL 228100 (Ala. Ct. App. 1992).

Opinion

BOWEN, Judge.

This is an appeal from the denial of a petition for post-conviction relief.

The appellant, Conny Howard, was convicted of robbery in the first degree and was sentenced to imprisonment for life without parole as a habitual felony offender in July 1990. That conviction was affirmed by this Court in an unpublished memorandum opinion issued March 15, 1991. See Howard v. State, 579 So.2d 711 (Ala.Cr.App.1991) (Table).

The petition challenging that conviction alleges the following grounds: 1) ineffective assistance of trial counsel; 2) the trial court was without jurisdiction because the trial judge was a district judge, not a circuit judge; 3) the sentence of imprisonment for life without parole is not authorized by law because two of the prior convictions used to enhance his sentence (criminal mischief and theft of property) arose out of the same conduct and were not separate convictions; 4) selective enforcement of the Habitual Felony Offender Act; 5) newly discovered evidence that appellant’s trial counsel, after having represented the appellant, accepted an appointment to represent the appellant’s codefendant and during that representation obtained “vital” information that would “completely exonerate” the appellant; 6) “the testimony of several critical witnesses is recorded in the wrong sequence in the trial transcript”; and 7) highly prejudicial prosecutorial misconduct. The circuit court denied the petition after an evidentiary hearing. The findings of the circuit court are attached as an appendix to this opinion.

The appellant raises four issues on this appeal.

I.

The post-conviction court addressed each of the issues raised in the petition and found them to be without merit. Those findings are supported by the record. The petition was properly denied for the reasons stated by the post-conviction court in its order of March 11, 1992.

As to the second ground stated in the petition, we note that Rule 13(A), Alabama Rules of Judicial Administration, specifically provides that the “presiding circuit judge may temporarily assign circuit or district judges to serve either within the circuit or in district courts within the circuit.”

II.

The findings of the post-conviction court regarding the issue of ineffective assistance of trial counsel are stated in parts 6(a) through 6(f) of its written order denying the petition. Those findings are supported by the record. The appellant has failed to meet the burden of Strickland v. [1145]*1145Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Ill and IV.

Three people were indicted for the robbery for which the appellant was connected: the appellant, Kelvin Williams, and Archie McGhee. At trial, Williams testified against the appellant. However, at the post-conviction hearing, Williams recanted his trial testimony and testified that he was coerced into testifying against the appellant at trial.

Codefendant McGhee fled after the robbery and was not apprehended until after the appellant’s trial. At the post-conviction hearing, the court refused to permit McGhee to testify. The appellant alleges that this was error and that he is entitled to a new trial based on the exculpatory testimony of both Williams and McGhee.

The petition was filed on December 2, 1991. The hearing was held on January 8, 1992. At the beginning of that hearing, appellant’s counsel announced that code-fendant Williams “came into our office January the 6th and informed us that he’s going to recant his testimony at the trial.” R. 172-73. The assistant district attorney objected “to them putting on this sort of late date surprise type witness.” The court sustained the objection and McGhee was not allowed to testify.

Appellant’s counsel subsequently made an offer of proof of McGhee’s expected testimony:

“This is Archie McGhee and what we expect he would testify to is that he was the codefendant in the robbery that Con-ny Howard was tried, convicted for and that he was arrested after Conny Howard had been convicted and after Kelvin Williams had been sentenced and after the appeal process had been exhausted in the Conny Howard case. We expect that he would testify that Conny Howard was not involved in the robbery. That there were only two people involved in the robbery, himself and Kelvin Williams. And that the Sheriff, ... Hulett, after he was arrested, tried to get him to make a statement saying that Conny Howard was involved in the robbery. And then again, Conny Howard was not involved in the robbery.” R. 205.

At the post-conviction hearing codefend-ant Williams testified that he lied at trial, that the appellant did not rob the store, and that he (Williams) and McGhee “robbed that store.” R. 191. Williams also testified that he was a “well-known liar.” However, he stated that he “got saved,” apparently by his grandmother, and because he “felt guilty” decided to tell the truth and just walked into the office of the appellant’s attorneys to admit his sin. He further testified that he went to talk to a lawyer about this and the lawyer just happened to be the appellant’s attorney. Although the credibility of witnesses is not for an appellate court, Williams’s testimony was absolutely incredible.

At th,e hearing, Lowndes County Sheriff John Hulett testified and, in effect, denied ever attempting to coerce anyone to incriminate the appellant.

In this Court’s unpublished memorandum affirming the appellant’s conviction (Howard v. State, 579 So.2d 711 1991), the following account of the facts is found:

“The evidence at trial tended to show that on September 11, 1989, at approximately 3:00 p.m. the appellant went to the Speedy-C store located at the intersection of U.S. Highway 80 and Alabama Highway 97 at Lowndesboro, Alabama. While at the store he asked the clerk for a cup of ice; after getting the ice he left the store. Thereafter, he took his wife to work, dropped her off, and left in her car. Later that same day, he contacted Kelvin 'Caveman’ Williams, and another man known only as Shorty [identified as McGhee at the post-conviction hearing]. The three men then conspired to perpetrate an armed robbery at the Speedy-C store. The appellant was characterized during the trial as the ‘wheelman and brains behind the robbery.’
"... The gun used was a small .25 semi-automatic pistol owned by appellant’s wife, which she usually kept in the trunk of her car. The appellant remained in the vehicle while Williams and [1146]*1146‘Shorty’ committed the robbery and picked them up as they fled from the store with approximately $1,000.00. The trio then went to the appellant’s trailer in rural Lowndes County and divided up the money.”

On direct appeal, the appellant’s only contention was that the testimony of the admitted accomplice Williams was not corroborated. In addressing that issue, this Court wrote:

“Using the ‘substruction process,’ the facts at trial tended to show: 1) that appellant was in the company of Williams only an hour or so before the robbery occurred[,] [according to the testimony of ... Williams’s brother. 2) Appellant and Williams attempted to borrow a pistol from Williams’s brother. This fact was also testified to by Williams’s brother. 3) Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
611 So. 2d 1143, 1992 Ala. Crim. App. LEXIS 1102, 1992 WL 228100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-state-alacrimapp-1992.