243 So. 3d 855
Ala. Crim. App.2017Background
- Antonio Hutcherson was convicted of first-degree burglary, first-degree robbery, and second-degree robbery; sentenced to concurrent 20-year terms (split to 5 years imprisonment + 5 years supervised probation) and ordered to pay a victims' fund fee.
- Victim Henry Calhoun was assaulted in an apartment during a nighttime intrusion; he lost consciousness, suffered head injuries and lasting eye impairment, and later identified Hutcherson by voice as a participant.
- Jonathan Williams (codefendant) pleaded guilty and testified; his plea colloquy referenced that Hutcherson was present, but Williams on the stand denied implicating Hutcherson and claimed Hutcherson was unconscious nearby that night.
- Hutcherson moved for a new trial alleging multiple instances of ineffective assistance of counsel (failure to request limiting instruction for plea-colloquy, failure to impeach with prior statements, failure to object to evidence/prosecutor conduct, chain-of-custody challenge to a cinder block, lack of preparation, etc.).
- The trial court denied the new-trial motion after an evidentiary hearing; on appeal the court reviewed counsel's performance under Strickland and affirmed most convictions but vacated the second-degree robbery conviction on double-jeopardy grounds and remanded to vacate that conviction and sentence.
Issues
| Issue | Plaintiff's Argument (Hutcherson) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Ineffective assistance for failure to request limiting instruction for Williams's plea-colloquy | Counsel erred by not asking jury be instructed to use plea transcript only for impeachment, not as substantive evidence | Transcript contained limited reference and was relevant to presence; omission was strategic and not prejudicial | No relief: deficiency acknowledged but no prejudice shown |
| Ineffective assistance for failing to impeach Calhoun with prior police report | Counsel should have used a police report contradicting parts of Calhoun's trial testimony to impeach identification | Report actually implicated Hutcherson and would likely have harmed defense; decision was strategic | No relief: strategic choice, not deficient |
| Various failures to object (hearsay, character, poverty references, prosecutorial vouching, leading questions, chain of custody) | Counsel failed to protect defendant from inadmissible/prejudicial evidence and improper argument | Many non-objections were strategic to avoid jury irritation or highlight defense theory; evidentiary issues either harmless or admissible under statute | No relief on evidentiary/prosecutorial-argument claims (no prejudice shown) |
| Double jeopardy: convictions for both 1st-degree and 2nd-degree robbery for same robbery | Second-degree robbery is a lesser-included offense; convictions together violate double jeopardy | First- and second-degree robbery have distinct elements; Blockburger may permit convictions absent contrary legislative intent | Held: Vacate second-degree robbery conviction and sentence (legislature designated 2nd-degree as lesser degree; cannot be convicted of both for single robbery) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged ineffective-assistance test: performance and prejudice)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (double-jeopardy test: each statutory provision must require proof of an element the other does not)
- Ex parte Cole, 842 So.2d 605 (Ala. 2002) (lesser-included analysis where indictment must allege facts essential to lesser offense when single-count indictment used)
- Ex parte Minor, 780 So.2d 796 (Ala. 2000) (failure to limit jury use of prior-conviction evidence can be plain error in capital context)
- Ex parte Darby, 516 So.2d 786 (Ala. 1987) (a single crime cannot be divided to permit multiple convictions for same offense)
- Ex parte Rice, 766 So.2d 143 (Ala. 1999) (legislative intent can permit cumulative punishments; Blockburger is a rule of statutory construction)
- McNair v. State, 706 So.2d 828 (Ala. Crim. App. 1997) (framework for reviewing ineffective-assistance claims under Strickland)