BURKE, Judge.
Michael David Carruth was convicted of four counts of capital murder in connection with the death of 12-year-old William Brett Bowyer. The murder was made capital (1) because it was committed during the course of a kidnapping in the first degree, see § 13A-5-40(a)(1), Ala.Code 1975; (2) because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; (3) because it was committed during the course of a burglary in the first degree, see § 13A-5-40(a)(4), Ala.Code 1975; and (4) because the victim was less than 14 years of age, see § 13A-5-40(a)(15), Ala.Code 1975. Carruth was also convicted of attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975, first-degree robbery, a violation of § 13A-8-41, Ala. Code 1975, and first-degree burglary, a violation of § 13A-7-5, Ala.Code 1975, with respect to the victim's father, Forest Bowyer. The jury unanimously recommended that Carruth be sentenced to death for his capital-murder convictions. The trial court accepted that recommendation and sentenced Carruth to death. The trial court also sentenced Carruth to life imprisonment for the attempted-murder, robbery, and burglary convictions.
In Carruth v. State, 927 So.2d 866 (Ala. Crim.App.2005), this Court affirmed Carruth's convictions and sentences for capital
In Carruth v. State, 927 So.2d 866, 869-70 (Ala.Crim.App.2005), this Court summarized the evidence as follows:
In his petition, Carruth alleged numerous grounds for relief, most of which were summarily dismissed by the circuit court. However, Carruth does not raise arguments for many of those issues on appeal. Allegations that are not expressly argued on appeal are deemed to be abandoned and will not be reviewed by this Court. Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995).
We note that "`even though this petition challenges a capital conviction and a death sentence, there is no plain-error review on an appeal from the denial of a Rule 32 petition.'" Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003), quoting Dobyne v. State, 805 So.2d 733, 740 (Ala.Crim.App.2000). "`In addition, "[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed."'" Burgess v. State, 962 So.2d 272, 277 (Ala.Crim.App.2005), quoting Brownlee v. State, 666 So.2d at 93 (Ala. Crim.App.1995), quoting in turn State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App. 1993).
"The standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition." Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim. App.1992). "A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision." Miller v. State, 63 So.3d 676, 697 (Ala. Crim.App.2010). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). In either instance, this Court may affirm the judgment of the circuit court for any reason, even if not for the reason stated by the circuit court.
First, Carruth argues that the circuit court erred by summarily dismissing the ineffective-assistance-of-counsel claims he raised in paragraphs 35-39 of his petition. (C2. 21-23.)
In its order dismissing portions of Carruth's petition, the circuit court held that the allegations in paragraphs 35-37 of the petition were insufficiently pleaded under Rule 32.6(b), Ala. R.Crim. P. (C. 187.) The circuit court also found that those allegations failed to state a claim for which relief could be granted. We agree.
Rule 32.3, Ala. R.Crim. P., provides that "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Furthermore, Rule 32.6(b), Ala. R.Crim. P., provides:
In discussing the specificity requirement of Rule 32.6(b), Ala. R.Crim. P., this Court has held:
Boyd v. State, 913 So.2d 1113, 1125-26 (Ala.Crim.App.2003)(emphasis in original).
Paragraphs 35-37 of Carruth's petition alleged that trial counsel were ineffective for failing to raise a Batson challenge to the State's allegedly discriminatory jury selection process. As to claims of ineffective assistance of counsel, this Court has held:
Lee v. State, 44 So.3d 1145, 1154-55 (Ala. Crim.App.2009).
Additionally, an evidentiary hearing is not necessary in every case in which the petitioner alleges claims of ineffective assistance of counsel. The Alabama Supreme Court has stated:
Ex parte Hill, 591 So.2d 462, 463 (Ala. 1991). "[A] circuit judge who has personal knowledge of the facts underlying an allegation of ineffective assistance of counsel may summarily deny that allegation based on the judge's personal knowledge of counsel's performance." Partain v. State, 47 So.3d 282, 286 (Ala.Crim.App.2008) (citing Ex parte Walker, 800 So.2d 135 (Ala. 2000)). Here, the circuit judge who presided over Carruth's postconviction proceedings was the same judge who presided over Carruth's capital-murder trial and the same judge who sentenced Carruth to death.
In order to determine whether trial counsel were ineffective for failing to challenge the State's peremptory strikes, we look first to the requirements set out in Batson. In evaluating a Batson claim, courts must follow a three-step process. As the United States Supreme Court explained in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003):
Furthermore, this Court has held:
Lightfoot v. State, 152 So.3d 434, 438 (Ala. Crim.App.2012), reversed on other grounds by Ex parte Lightfoot, 152 So.3d 445, 438 (Ala.2013).
Accordingly, this Court must determine whether Carruth's petition contained sufficient facts that, if true, established an inference of racially discriminatory jury selection. Furthermore, the petition must contain facts that, if true, established that counsel were deficient for failing to bring that to the attention of the trial court by raising a Batson challenge.
In his petition, Carruth asserted that there was a prima facie showing that the State exercised many of its peremptory challenges on the basis of race and argued that trial counsel were ineffective for failing
In paragraphs 35-37 of Carruth's petition (C2. 21-22), as well as Issue III (C2. 41-46) of his petition which was incorporated by reference, Carruth supported this claim by alleging that the venire consisted of 41 prospective jurors of which 16 were black. According to Carruth, the State used 10 of its 15 peremptory strikes, or 66 percent, to remove prospective black jurors. Carruth also alleged that all but one of the State's first nine strikes were used to remove blacks from the venire. Carruth contended that this pattern of strikes gave rise to an inference of discrimination. However, Carruth's petition did not indicate the ultimate composition of the jury nor did it indicate whether the other six black veniremen served on the jury or whether they were struck by the defense. To be sufficiently specific, a petition, at a minimum, should indicate the ultimate composition of the petit jury.
Although Carruth did allege a number of facts in his petition, he still fell short of the specificity requirement of Rule 32.6(b), Ala. R.Crim. P., by failing to disclose the racial composition of the jury that was ultimately selected. Additionally, Carruth failed to provide thorough and specific details to support his other general allegations. We note that Carruth did not disclose the identities of all the black veniremen that he claimed were struck in a racially discriminatory manner. In his petition, Carruth only specifically identified five of the 10 veniremen that he claimed were struck solely on the basis of their race.
Carruth also failed to allege that trial counsels' decision not to raise any Batson challenges was not sound trial strategy. A review of the record reveals that, at the conclusion of jury selection, Carruth's trial counsel stated: "The defense does not have any Batson or J.E.B. challenges at all, Your Honor." (R1. 1403-04.) Thus, counsel did not simply forget or overlook the possibility of raising Batson challenges but affirmatively stated that they did not have any such challenges. Counsel could have been completely satisfied with the jury that was selected and not wished to potentially disturb its composition by making a Batson challenge. Because Carruth failed to even allege that counsels' decision was not the result of sound trial strategy, his petition failed to meet the specificity requirement of Rule 32.6(b), Ala. R.Crim. P. Accordingly, the circuit court was correct to summarily dismiss the issues raised in paragraphs 35-37 of Carruth's petition. See Rule 32.7(d), Ala. R.Crim. P.
Because we have determined that Carruth failed to meet the pleading requirements for the first prong of Strickland, i.e., that counsels' performance was deficient, we need not address the prejudice requirement. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.")
In paragraph 38 of his petition, Carruth again claimed that trial counsel were ineffective for failing to object under Batson in order to preserve the issue for appeal and for failing to create a record of the racial composition of the jury venire. Carruth also appears to allege that appellate counsel was ineffective for failing to raise the issue on direct appeal. In support of these
In the previous subsection, we held that the allegations from paragraphs 35-37 and Issue III of his petition were insufficiently pleaded. Because Carruth failed to include any additional factual allegations in paragraph 38 of his petition, we similarly find that he failed to meet the specificity requirement of Rule 32.6(b), Ala. R.Crim. P. Accordingly, the circuit court did not err by summarily dismissing the issues raised in paragraph 38 of Carruth's petition.
In paragraph 39 of his petition (C2. 23), which incorporated Issue VI in his petition by reference (C2. 55-59), Carruth alleged that trial counsel were ineffective for failing to object to the trial court's decision to grant the State's challenge for cause against prospective juror D.R. According to Carruth, "counsel should have marshaled evidence and argued that the record did not adequately reflect that [D.R.] had views which would `prevent or substantially impair' the performance of her duties as a juror in accordance with instructions and her oath." (C2. 23.) The circuit court summarily dismissed this claim as insufficiently pleaded under Rule 32.6(b), Ala. R.Crim. P. We agree.
Carruth failed to specifically state what evidence trial counsel could have "marshaled" that would have changed the trial court's ruling nor did he plead any other facts that would have called the ruling into question. "A trial judge's finding on whether or not a particular juror is biased is based upon determination of demeanor and credibility that are peculiarly within a trial judge's province." McNabb v. State, 887 So.2d 929, 945 (Ala.Crim.App.2001)(internal citations and quotations omitted). Therefore, we are unable to determine, from the petition, whether trial counsel were deficient for failing to object to D.R.'s exclusion.
Additionally, Carruth failed to demonstrate how he was prejudiced by D.R. being excused for cause. Although he generally stated that her exclusion violated his right to a fair trial, his petition did not disclose any facts that, if true, would demonstrate that he was prejudiced. In order to meet the requirements of Strickland, a petitioner must establish both deficient performance and prejudice. Carruth did neither.
Additionally, Carruth failed to allege that trial counsels' decision not to object to the State's for-cause challenge against D.R. was not the product of trial strategy. D.R. may have been an unfavorable juror for the defense as well. Thus, counsels' decision not to object to D.R.'s removal may have been sound trial strategy. Nevertheless, we are unable to determine this issue from Carruth's petition. Accordingly, the circuit court was correct to summarily dismiss paragraph 39 of his petition. See Rule 32.7(d), Ala. R.Crim. P.
In Issue II of Carruth's brief on appeal, he argues that the circuit court erred by finding that the allegations in paragraphs 35-37 of his petition failed to state a claim for which relief could be granted. In the previous section, we determined that the allegations in those paragraphs did not meet the specificity requirements of Rule 32.6(b), Ala. R.Crim. P. Accordingly, we need not address this issue. As noted, this Court may affirm a circuit court's ruling on a postconviction petition if it is correct for any reason. See Lee v. State, 44 So.3d 1145, 1149 (Ala.Crim.App.2009).
Next, Carruth argues that the circuit court erred by summarily dismissing the arguments from paragraph 52 of his petition (C2. 29), as well as the arguments from Issue VII (C2. 59-63), which Carruth incorporated by reference. In those paragraphs, Carruth claimed that trial counsel were ineffective for failing to object to what Carruth asserted were numerous instances of prosecutorial misconduct. The circuit court dismissed all of the claims in paragraph 52 as insufficiently pleaded under Rule 32.6(b), Ala. R.Crim. P., and for failing to state a claim for which relief could be granted under Rule 32.7(d), Ala. R.Crim. P.
First, Carruth asserted that the State committed prosecutorial misconduct during its closing argument when, he said, it made several assertions of facts that were not in evidence. Specifically, Carruth claimed that the prosecutor "repeatedly referr[ed] to the granular substance found at the crime scene as lime." (C2. 60.) Additionally, Carruth contended that the prosecutor wrongly asserted that two knives were used in the crime. According to Carruth, those factual assertions were not in evidence and were unduly prejudicial. Therefore, he said, trial counsel were ineffective for failing to object to those references.
A review of the record reveals that, during the State's case-in-chief, Tommy Pell, a deputy with the Russell County Sheriff's Department, testified that he took soil samples from the grave in which the victims were thrown. Pell stated that there was a "grayish granule type substance" mixed with the dirt that he believed "to be lime or something possibly to cover up the bodies, the odor of the bodies." (R1.1769.)
During closing arguments, the prosecutor made the following statement: "[Carruth and Brooks] go over and get some bags, and, again, ladies and gentlemen, we submit, as Officer Pell told you, we think that was the lime in those bags." (R1. 2132-33.) Thus, the record refutes Carruth's contention. Officer Pell testified that he believed that the substance he discovered was lime and the prosecutor stated that "we think that was lime in those bags." Accordingly, there was nothing improper about the prosecutor's comment and trial counsel could not have been ineffective for failing to object. See Patrick v. State, 680 So.2d 959, 963 (Ala.Crim.App.1996)(holding that counsel would not be ineffective for failing to assert a meritless claim).
Similarly, the record supports the prosecutor's comment regarding the existence of two knives. "A prosecutor's statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury." Roberts v. State, 735 So.2d 1244, 1253 (Ala.Crim.App.1997), affd, 735 So.2d 1270 (Ala.), cert. denied, 538[528] U.S. 939, 120 S.Ct. 346, 145 L.Ed.2d 271 (1999). "`During closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.'" Reeves v. State, 807 So.2d 18, 45 (Ala.Crim.App. 2000), cert. denied, Reeves v. Alabama, 534 U.S. 1026, 122 S.Ct. 558, 151 L.Ed.2d 433 (2001), quoting Rutledge v. State, 523 So.2d 1087, 1100 (Ala.Crim.App.1987), reversed on other grounds, Ex parte Rutledge, 523 So.2d 1118 (Ala.1988).
Testimony at trial revealed that both Carruth and Brooks used a knife in an attempt to murder Forest Bowyer by cutting his throat. Thus, it was a legitimate inference for the prosecutor to argue that
Because Carruth's ineffective-assistance-of-counsel claims based on alleged assertions of facts not in evidence are refuted by the record, the circuit judge, who was familiar with the facts after he presided over Carruth's trial, was correct to summarily dismiss the allegations for failing to state a claim for which relief could be granted. See Rule 32.7(d), Ala. R.Crim. P.
Next, Carruth asserted that the prosecutor committed prosecutorial misconduct by telling the jury that the mayor was present in the courtroom. According to Carruth, that statement put "undue pressure on the jury to find Mr. Carruth guilty because of official interest in the case, rendering the trial unfair in violation of Mr. Carruth's right to due process." (C2. 60.) However, this claim failed to meet the specificity requirement of Rule 32.6(b), Ala. R.Crim. P., and failed to state a claim for which relief could be granted.
Carruth made only a bare assertion that the prosecutor's reference to the mayor's presence put undue pressure on the jury. He failed to plead any specific facts suggesting that the jury was actually influenced by this isolated comment. Accordingly, Carruth failed to plead facts that, if true, would have entitled him to relief. Therefore, the circuit court was correct to summarily dismiss this claim. See Rule 32.7(d), Ala. R.Crim. P.
Moreover, a review of the record reveals that the comment in question was made during the State's rebuttal to Carruth's closing argument and did not suggest that there was additional "official interest" in Carruth's case. During Carruth's closing argument, defense counsel suggested that Carruth was actually trying to prevent the victims from being killed by telling Butch Bowyer to "go to sleep" after cutting Bowyer's throat. (R1. 2165.) The prosecutor was merely responding to that suggestion by stating: "You know, I'm glad the mayor's here today. Listening to [defense counsel], I think maybe he ought to go back to the council on Tuesday and recommend a proclamation for Mr. Carruth for being such a fine fella, a real hero, that was going to save this man's life that he just threw in that hole." (R1. 2205.) Accordingly, the record does not support Carruth's claim and the circuit court was correct to summarily dismiss it.
Next, Carruth asserted that the prosecutor committed misconduct by "telling the jury during his closing argument that death would not be a possible punishment unless the jury convicted Mr. Carruth of capital murder." (C2. 59.) Carruth argued that, although counsel raised an objection to that comment, they were ineffective for failing to obtain a ruling. Carruth contended that the prosecutor's comment created a risk that the jury convicted Carruth of the capital offenses "because they were worried that otherwise he would not be punished severely enough, rather than because they were convinced of his guilt beyond a reasonable doubt." (C2. 61.) Furthermore, Carruth argued that the statement was highly prejudicial "because the jury cannot consider punishment during the guilt/innocence phase." (C2. 61.)
However, Carruth failed to allege that the jury was actually affected by this statement. Rather, Carruth made a bare allegation that this comment rendered his trial "fundamentally unfair in violation of his right to due process." (C2. 61.) For the reasons stated in the previous subsection,
Moreover, a review of the record reveals that the prosecutor did not ask the jury to consider punishment during the guilt phase as Carruth claimed. During his closing argument, the prosecutor stated:
(R1. 2208-09.) Thus, the record refutes Carruth's contention that the jury was asked to consider punishment during its guilt-phase deliberations. Accordingly, the circuit court was correct to summarily dismiss this claim.
Next, Carruth argues that the circuit court erred by summarily dismissing the claims in paragraphs 71-76 of his petition (C2. 38-40), as insufficiently pleaded under Rule 32.6(b), Ala. R.Crim. P., and for failing to state a claim under Rule 32.7(d), Ala. R.Crim. P.
In paragraph 71 of his petition, Carruth claimed that trial counsel were ineffective for failing to make an opening statement during the penalty phase of his trial. Carruth alleged that, "[b]y waiving opening argument, the defense missed an important opportunity to explain to the jury why their client should not be sentenced to death." (C2. 38.) However, Carruth did not assert what arguments he believed counsel should have made in an opening statement for his sentencing phase. Additionally, Carruth did not claim that, had counsel made such an argument, he would not have been sentenced to death. Rather, Carruth only claimed that choosing not to present an opening argument was not justified by any reasonable strategy.
Even assuming that all of the factual allegations in paragraph 71 are true, the circuit court could not have determined that Carruth was entitled to relief because of ineffective assistance of counsel under Strickland. Accordingly, the circuit court was correct in finding that Carruth failed to meet the specificity requirement of Rule 32.6(b), Ala. R.Crim. P.
Carruth also claimed, in paragraph 72 of his petition, that counsel were ineffective during closing arguments of the penalty phase when, he says, counsel "made the damaging argument to the jury that it is understandable if the Bowyer family wants to kill Mr. Carruth." (C2. 38.) Carruth argued that counsel's statement "suggested that revenge against Mr. Carruth was proper and made it easier for the jury to vote for death, because even Mr. Carruth's own counsel thought that was understandable." (C2. 38.)
However, the record does not support Carruth's characterization of counsel's statement. During his closing argument at the penalty phase, defense counsel stated:
(R1. 2295-96.) A review of counsel's statement reveals that counsel was not suggesting that revenge against Carruth was understandable. Rather, counsel stated that he could understand how people could feel that way before the evidence was presented at trial. Counsel then argued that death was not the appropriate sentence in light of the evidence that Carruth was not the one who actually shot Brett Bowyer. Accordingly, Carruth's argument was without merit and the circuit court was correct to summarily dismiss it for failing to state a claim for which relief could be granted. See Rule 32.7(d), Ala. R.Crim. P.
In paragraph 73 of his petition Carruth asserted that trial counsel were ineffective during the penalty phase for failing to object when the prosecutor urged the jury to rely on his 25 years of experience in asking for the death penalty. However, the record directly contradicts that assertion. During closing arguments of the penalty phase, the prosecutor stated: "I do not make it a practice, and have not made it a practice over the last twenty-five years, to beg a jury for the death penalty. I won't do that today." (R1. 2290.) Thus, the prosecutor did not urge the jury to rely on his experience in asking for the death penalty.
Carruth also asserted that counsel should have objected when the prosecutor asked the jury to put themselves in the place of the victim; when the prosecutor referred to Carruth as an animal; and when the prosecutor quoted the Bible. However, Carruth did not allege why he believed these statements were improper nor did he state the grounds on which he believed counsel should have objected. Additionally, Carruth failed to plead any facts to suggest how these statements prejudiced him. Carruth merely alleged that the statements were improper and prejudicial. Such a bare allegation is insufficient to meet the pleading and specificity requirements of Rules 32.3 and 32.6(b), Ala. R.Crim. P. Accordingly, the circuit court was correct to summarily dismiss the claims in paragraph 73 of Carruth's petition. See Rule 32.7(d), Ala. R.Crim. P.
In paragraph 74, as well as Issues XI(A), XI(B), XV, IX(C), and XIV of his petition, which were incorporated by reference, Carruth claimed that counsel were ineffective for failing to object to several of the trial court's jury instructions.
First, Carruth asserted that the trial court improperly instructed the jury when it stated: "If an accused acquires a gun as loot during commission [of a burglary] then he is considered to be armed with a deadly weapon." (C2. 72), quoting (R1. 2232.) Carruth claimed that counsel were deficient for failing to object and argued that, but for counsels' deficient performance, Carruth would not have been sentenced to death.
However, Carruth's underlying claim is meritless. This Court has held: "If an accused or an accused's accomplice acquires a gun as loot during commission of a burglary, the accused, for purposes of § 13A-7-5 [first-degree burglary], is considered to be armed with a deadly weapon."
Next, Carruth asserted that the trial court's instruction on the "heinous, atrocious, or cruel" aggravating circumstance was unconstitutionally vague and overbroad. (C2. 39.) Specifically, Carruth argued that the "set the crime apart from the norm of capital offenses" language rendered it unconstitutionally vague because, he said, the jury was given no instruction as to what a normal capital offense entailed. According to Carruth, trial counsel were ineffective for failing to raise an objection to this instruction.
However, this Court has held that such language is not unconstitutional. In Broadnax v. State, 825 So.2d 134, 210 (Ala. Crim.App.2000), this Court approved of jury instructions that were nearly identical to the instructions in the present case. The jury instructions in Broadnax contained the "set the crime apart from the norm of capital offenses" language that Carruth claimed was improper. Because the trial court's instructions were not improper, counsel was not ineffective for failing to raise a meritless objection. See Patrick v. State, 680 So.2d at 963.
Carruth also asserted that the trial court erred by telling the jury that their verdict at the penalty phase was merely a recommendation and by not informing them that finding Carruth guilty of robbery-murder would automatically make him eligible for the death penalty. Carruth argued that trial counsel were ineffective for failing to raise an objection. However, Carruth's underlying argument as to why such an instruction was improper is based on his contention that the Alabama Supreme Court's decision in Ex parte Waldrop, 859 So.2d 1181 (Ala.2002), "impermissibly eases the State's burden of proving that the death penalty is appropriate by ensuring that the jury is unaware that its guilt-innocence phase finding authorizes the trial judge to impose the death penalty without additional process." (C2. 81.) However, Waldrop has not been overruled. Accordingly, the trial court's instructions were not improper and counsel were not ineffective for failing to raise a meritless objection. See Patrick v. State, 680 So.2d at 963.
Next, Carruth asserted that the trial court gave erroneous instructions regarding the balancing of the aggravating and mitigating circumstances. According to Carruth, counsel were ineffective for failing to object to this instruction. In his petition, Carruth incorporated Issue IX(C) by reference. However, this appears to be a typographical error because issue IX discusses improper testimony during the guilt phase of the trial and does not contain a subsection C. (C2. 65.) Issue XI(C), on the other hand, discusses the issue of the allegedly improper jury instruction. (C2. 74.)
In Issue XI(C), Carruth asserted that the following instruction was misleading: "if ... you determine that the mitigating circumstances outweigh any aggravating circumstances that exist ... your verdict would be to recommend punishment of life imprisonment without the possibility of parole...." (R1. 2319.) According to Carruth, this instruction would have improperly led a jury who determined that the aggravating circumstances and the mitigating circumstances were equally balanced
However, the argument that Carruth raised in Issue XI(C) of his petition is identical to the argument raised by the petitioner in Ex parte McNabb, 887 So.2d 998 (Ala.2004). In McNabb, the Alabama Supreme Court held that such language is not improper as long as the jury is "not invited to recommend a sentence of death without finding any aggravating circumstances." 887 So.2d at 1004. A review of the record reveals that the trial court specifically instructed the jury that "if, after a full and fair consideration of all the evidence in this case, you are convinced beyond a reasonable doubt that at least one aggravating circumstance does exist and that the aggravating circumstance out-weighs the mitigating circumstances, your verdict should be" that Carruth be sentenced to death. (R1. 2318-19.) The jury in the present case was not instructed that it could sentence Carruth to death without finding at least one aggravating circumstance. Accordingly, counsel were not ineffective for failing to raise a baseless objection. See Patrick v. State, 680 So.2d at 963.
Finally, Carruth claimed that the trial court erred by charging the jury that it "must `double count' the robbery, burglary, and kidnaping found at the guilt phase as aggravating factors." (C2. 40.) According to Carruth, trial counsel were ineffective for failing to object to this instruction. However, in Issue XIV, which Carruth incorporated by reference, Carruth stated that the "trial court erred in allowing kidnaping, burglary, and robbery to be considered both as aggravating circumstances and as elements of capital murder over defense objection." (C2. 78) (emphasis added). Thus, according to Carruth's petition, trial counsel did object to this jury charge and, consequently, did not render deficient performance. Accordingly, this claim is meritless on its face and the circuit court was correct to summarily dismiss it. Carruth raised a nearly identical claim in paragraph 75 of his petition. For the reasons stated in this subsection, the circuit court was correct to summarily dismiss the allegation in that paragraph as well.
Because the underlying claims in paragraph 74 of Carruth's petition were meritless, trial counsel could not have been ineffective for failing to raise objections. Therefore, Carruth failed to state claims for which relief could be granted and the circuit court was correct to summarily dismiss them. See Rule 32.7(d), Ala. R.Crim. P.
In paragraph 76 of his petition which incorporated Issue XVIII by reference, Carruth claimed that trial counsel were ineffective for failing to challenge Alabama's method of execution as a violation of the Eighth Amendment to the United States Constitution. However, the Alabama Supreme Court has held that "Alabama's use of lethal injection as a method of execution does not violate the Eighth Amendment to the United States Constitution." Ex parte Belisle, 11 So.3d 323, 339 (Ala.2008). Thus, Carruth's underlying claim was meritless and trial counsel were not ineffective for failing to raise a meritless claim. See Patrick v. State, 680 So.2d at 963. Accordingly, Carruth failed to state a claim for which relief could be granted and the circuit court was correct to summarily dismiss it. See Rule 32.7(d), Ala. R.Crim. P.
Next, Carruth argues that the circuit court erred by summarily dismissing the claims raised in paragraphs 78-81 of his
In his petition, Carruth asserted that "appellate counsel was plainly ineffective for failing to raise a number of meritorious issues in Mr. Carruth's appellate brief that, if raised, would have undermined the validity of Mr. Carruth's conviction and sentence." (C2. 42.) Carruth then listed 12 issues and incorporated by reference the substantive arguments for each issue found elsewhere in his petition.
In order to prevail on a claim of ineffective assistance of appellate counsel, a Rule 32 petitioner must show that appellate counsel was deficient for failing to raise meritorious issues on direct appeal and that, but for counsel's failure, the out-come of the petitioner's appeal would have been different. Brown v. State, 663 So.2d 1028, 1035 (Ala.Crim.App.1995).
Carruth claimed that appellate counsel was ineffective for failing to raise several issues that Carruth had argued elsewhere in his petition. Carruth incorporated the following arguments by reference:
(Carruth's brief, at 56-57.)
However, Issues IV and XVII, regarding the alleged improper denial of Carruth's motion for a change of venue and motion for the trial judge to recuse respectively, were raised by appellate counsel in Carruth's direct appeal. Accordingly, those arguments are refuted by the record. See Carruth v. State, 927 So.2d 866 (Ala.Crim.App.2005). Additionally, in Section I of this opinion, this Court determined that the allegations in Issue III of Carruth's petition, regarding trial counsels' failure to raise a Batson challenge, were insufficiently pleaded under Rule 32.6(b), Ala. R.Crim. P. Carruth failed to make any additional allegations in paragraph 79 of his petition. Therefore, the circuit court was correct to summarily dismiss Carruth's ineffective-assistance-of-appellate-counsel claim as it related to Issue III in his petition. We will now address the remaining issues.
In Issue V of his petition, Carruth argued that the trial court erred by ruling
Additionally, Carruth argued that the trial court erred by allowing Renita Ward to testify "that she had been looking for evidence related to the Ratcliffs, making reference to the widely reported Lee County murders and connecting them to Mr. Carruth...." (C2. 53.) However, the record reflects that, during Ward's testimony, the following exchange occurred:
(R1. 1882.) The prosecutor moved on and never mentioned the topic of the Ratcliff murders again. Therefore, Ward never gave any testimony that connected Carruth to the murders in Lee County. Accordingly, this argument is also refuted by the record. Because each of the arguments from Issue V of Carruth's petition were refuted by the record, appellate counsel was not ineffective for failing to raise them on direct appeal. See Patrick v. State, 680 So.2d at 963. Accordingly, Carruth failed to state a claim for which relief could be granted and the circuit court did not err by summarily dismissing it.
In Issue VI of Carruth's petition, he argued that the trial court made several errors during jury selection. First, Carruth claimed that the trial court erred by refusing to grant his for-cause challenge regarding juror S.C. Carruth quoted isolated statements that S.C. made in voir dire regarding her ability to be fair. However, in none of those statements did S.C. unequivocally indicate that she could not be fair or that she had a fixed opinion about Carruth's guilt or innocence. See § 12-16-150(7), Ala.Code 1975 ("it is good ground for challenge of a juror by either party ... [t]hat he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.") Accordingly, this claim was meritless.
Second, Carruth argued that the trial court erroneously granted the State's forcause challenge of juror D.R. However, in Section I(C) of this opinion, we determined that the claim in this paragraph was insufficiently pleaded under Rule 32.6(b), Ala. R.Crim. P. Carruth offered no additional factual allegations in paragraph 79 of his petition. Therefore, the circuit court was correct to summarily dismiss Carruth's ineffective-assistance-of-appellate-counsel claim as it related to Issue VI(B) in his petition.
Finally, Carruth argued that the trial court erred by death qualifying the
718 So.2d at 1157 (footnote omitted). Therefore, this claim is meritless and counsel was not ineffective for failing to raise it on appeal. See Patrick v. State, 680 So.2d at 963. Accordingly, Carruth failed to state a claim for which relief could be granted and the circuit court was correct to summarily dismiss it.
Next, Carruth contended that appellate counsel was ineffective for failing to argue that the State engaged in prosecutorial misconduct during its closing argument. Carruth incorporated by reference the claims that he raised in Issue VII of his petition. However, most of the claims raised in Issue VII of Carruth's petition have already been addressed. In paragraphs 111 and 113 of his petition, Carruth claimed that the prosecutor repeatedly referred to facts that were not in evidence during his closing argument; that the prosecutor improperly pointed out that the mayor was present; and that the prosecutor improperly commented that death would not be a possible punishment unless the jury convicted Carruth of capital murder. Those claims were found to be meritless in Section II of this opinion. Similarly, the claims raised in paragraph 115 were meritless for the reasons stated in Section III(C) of this opinion. Accordingly, appellate counsel was not ineffective for failing to raise those issues on direct appeal and the circuit court was correct to summarily dismiss them. See Rule 32.7(d), Ala. R.Crim. P.
In paragraph 112 of his petition, Carruth claimed that the prosecutor introduced improper victim-impact testimony during the guilt phase by admitting photographs of Brett and Forest Bowyer into evidence. Carruth argued that appellate counsel was ineffective for failing to raise that issue on appeal.
However, the photographs in question depicted Brett Bowyer when he was alive. They were not crime scene photographs, nor were they photographs from the autopsy. Carruth failed to explain why a photograph of the victims when they were alive constituted victim impact evidence. Rather, Carruth merely asserted that the photographs "served no purpose other than to elicit the passion and sympathy of the jury." (C2. 60.) Carruth failed to state what arguments he believes appellate counsel could have raised that would have changed the outcome of Carruth's direct appeal. Additionally, Carruth failed to allege any facts that, if true, would demonstrate that he was prejudiced by appellate counsel's decision not to include this issue on appeal. Accordingly, Carruth did not meet the pleading and specificity requirements of Rules 32.3 and 32.6(b), Ala. R.Crim. P.
Because the claims from Issue VII of Carruth's petition were either meritless, deficiently pleaded, or both, the circuit court did not err by summarily dismissing the ineffective-assistance-of-appellate-counsel claim that incorporated those arguments. See Rule 32.7(d), Ala. R.Crim. P.
As to the remaining issues listed in paragraph 79 of Carruth's petition, Carruth failed to state whether any of those issues were preserved for appellate review and, if they were not, whether each claimed error rose to the level of plain error. Without such supporting factual allegations, it is impossible to determine, from the petition, whether appellate counsel was ineffective for failing to raise those issues on appeal. Accordingly, the circuit court was correct to summarily dismiss the claims as insufficiently pleaded under Rules 32.3 and 32.6(b), Ala. R.Crim. P.
Furthermore, Carruth failed to allege that counsel's decision not to include those 12 issues was not the product of a sound strategy. This Court has held:
Brown v. State, 663 So.2d at 1035. Accordingly, Carruth failed to allege sufficient facts to demonstrate that appellate counsel was deficient, see Rule 32.6(b), Ala. R.Crim. P., and the circuit court was correct to summarily dismiss the ineffective-assistance-of-appellate-counsel claims raised in paragraphs 78 and 79 of Carruth's petition. See Rule 32.7(d), Ala. R.Crim. P.
Carruth also claimed that appellate counsel was ineffective for failing to "cite a single ground in support of" Carruth's motion for a new trial. However, the record directly refutes this claim. On July 7, 2004, appellate counsel filed a motion for a new trial in which he stated the following:
(C3. 61.)
In paragraph 81 of his petition, Carruth claimed that "[t]hese errors, individually and collectively, denied Mr. Carruth the effective assistance of counsel...." (C2. 44.) However, Alabama does not recognize a "cumulative effect" analysis for ineffective-assistance-of-counsel claims. See Mashburn v. State, 148 So.3d 1094, 1117 (Ala.Crim.App.2013), quoting Taylor v. State, 157 So.3d 131 (Ala.Crim. App.2010), quoting in turn Brooks v. State, 929 So.2d 491, 514 (Ala.Crim.App.2005) ("`"We can find no case where Alabama appellate courts have applied the cumulative-effect analysis to claims of ineffective assistance of counsel."'") Accordingly, this claim was meritless and the circuit court was correct to summarily dismiss it. See Rule 32.7(d), Ala. R.Crim. P.
Next, Carruth argued that he was entitled to a new trial because, he said, the jury engaged in premature deliberations "each and every day and night of his trial." (C. 194.) The circuit court denied this claim after an evidentiary hearing. On appeal, Carruth argues that the circuit court's factual findings were contradicted by evidence presented at the hearing and that the ruling was an abuse of discretion.
In his petition, Carruth asserted that several jurors discussed the evidence and whether Carruth should get the death penalty prior to beginning deliberations. Carruth alleged that these discussions took place during breaks and at night while the jury was sequestered at a local motel. Carruth claimed that several of the jurors would gather in one of the hotel rooms every night to play a board game called "Rummy Cube." (C. 197.) According to Carruth, those jurors had discussions regarding the case in violation of the trial court's instructions. He argued:
(C. 197-98.)
Carruth argued that he is entitled to a new trial because, he said, the premature deliberations occurred before Carruth had the opportunity to present evidence or arguments. Therefore, he argued, several of the jurors had already made up their minds regarding Carruth's guilt before formal deliberations began.
At the evidentiary hearing, Carruth presented testimony from two jurors and one alternate juror. Juror R.M. testified that she remembered playing board games with other jurors at night in one of the hotel rooms. However, when asked if any of the jurors discussed the case during those gatherings, R.M. replied, "Absolutely not. The judge told us not to discuss it. We did not." (R. 9.) R.M. also stated that there were no discussions regarding the evidence during breaks or at any other time before formal deliberations began.
B.T., an alternate juror, testified that she remembered some discussions about the evidence while the jury was on breaks during the guilt phase of the trial. However, B.T. stated that she did not recall "anybody say[ing] that [Carruth] was guilty, that he needs to be sentenced or anything to that effect." (R. 23.) B.T. testified that the discussions essentially involved comments regarding what the evidence was and not whether the evidence established Carruth's guilt.
Juror J.H. testified that he served as the foreman on Carruth's jury. Carruth introduced a statement that was purportedly given by J.H. The statement was hand written by a paralegal who worked for Carruth's Rule 32 counsel and was signed by J.H. The statement begins as follows:
(C. 397.) The statement continued, in pertinent part:
(C. 399-401.)
However, when J.H. testified at the evidentiary hearing, he stated that the discussions
(R. 124.) When asked about the statement taken by Carruth's counsel's paralegals, J.H. stated that he remembered being interviewed but did not recall the discussion.
On cross examination, J.H. stated that he did not actually write the statement. Rather, one of the paralegals wrote it and J.H. signed it. J.H. testified that he did not recall using the word "predeliberations" and stated that it is not a word that he would ordinarily use. J.H. agreed that he felt the discussions at the hotel were nothing more than "passing comments on the evidence." (R. 131.) When asked if he came to a decision regarding Carruth's guilt before the end of the State's case in chief, J.H. replied, "No. I mean, I had my developing thoughts, but I hadn't heard all the arguments." (R. 130.)
On appeal, Carruth claims that the circuit court's order conflicts with the evidence presented at the evidentiary hearing. In its order denying the claim, the circuit court made the following findings:
(C. 351.)
Carruth argues that J.H.'s written statement, combined with the testimony from the hearing, established that the jurors had already made up their minds regarding Carruth's guilt before formal deliberations began. Carruth also argues that the circuit court's factual finding that "`No juror testified that discussions concerning petitioner's guilt or possible sentence were ever made or heard until the case was turned over to the jury to begin deliberations after being properly instructed' is directly contradicted by [J.H.'s] testimony and his written statement." (Carruth's brief, at 65.)
However, the circuit court only admitted J.H.'s written statement for the purpose of impeaching the testimony J.H. gave at the evidentiary hearing. (R. 134.) At the hearing, J.H. testified that the discussions at the hotel were never in depth but were merely "passing comments" about certain pieces of evidence. (R. 131.) Although J.H.'s written statement indicated that the jurors discussed Carruth's guilt and a possible sentence before formal deliberations began, that statement was only offered for impeachment purposes. The circuit court chose to give greater weight to J.H.'s in-court testimony and this Court must give that decision great deference. This Court has held:
Broadnax v. State, 130 So.3d 1232, 1240 (Ala.Crim.App.2013).
The circuit court's order is not contradicted by the testimony presented at the evidentiary hearing. Rather, the circuit court chose to give little weight to J.H.'s written statement and resolved any contradictions in favor of J.H.'s in-court testimony. The circuit court's determination is entitled to great weight on appeal and this Court does not find it to be contrary to the evidence. Accordingly, we find that the circuit court did not abuse its discretion in denying this claim.
Finally, Carruth argues that the circuit court erred by refusing to allow hearsay testimony at the evidentiary hearing. At the hearing, Carruth sought to introduce hearsay testimony through Janann McInnis, a mitigation expert, in order to establish that his trial counsel were ineffective during the penalty phase of his trial. McInnis had planned to introduce statements that she obtained from Carruth's friends and family, which Carruth claimed should have been introduced at the penalty phase of his trial.
The State objected to the admission of these statements on the grounds that they constituted inadmissible hearsay. The State cited Giles v. State, 906 So.2d 963, 985-86 (Ala.Crim.App.2004), overruled on other grounds by Ex parte Jenkins, 972 So.2d 159 (Ala.2005) (wherein this Court held that the Alabama Rules of Evidence apply to postconviction proceedings).
In his brief on appeal, Carruth acknowledges that hearsay is inadmissible in a postconviction proceeding. However, Carruth urges this Court to overrule Giles to the extent that it holds that hearsay is inadmissible in situations similar to the one in the present case. According to Carruth, his evidentiary hearing was a "de facto sentence proceeding where Carruth sought to show the evidence which would have likely convinced the jury to recommend a sentence of life without parole instead of death." (Carruth's brief, at 68.) Carruth argues that not allowing hearsay in such a situation runs afoul of Rule 102, Ala. R. Evid., which provides that the Rules of Evidence "shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."
However, Carruth fails to explain why it would be necessary to overrule Giles and allow for hearsay in situations such as the one in the present case. Hearsay testimony offered through McInnis was not the only way for Carruth to present the mitigation
For the foregoing reasons, the judgment of the circuit court is affirmed.
AFFIRMED.
WELCH, KELLUM, and JOINER, JJ., concur.
WINDOM, P.J., recuses herself.
