474 So. 2d 106 | Ala. Crim. App. | 1984
Fourteen-year-old John Anthony Cruse, the appellant, was indicted and convicted for the murder of Betty Tait. Sentence was life imprisonment. That conviction was affirmed by this Court without a published opinion in July of 1982. In April of 1983, Cruse, through counsel, filed a petition for writ of error coram nobis contending that his appointed counsel were ineffective both at trial and on appeal.
At the coram nobis hearing, Cruse's appointed trial counsel testified. Reduced to its simplest and most fundamental elements, his testimony was that he chose not to appeal from the transfer order because it would have been "detrimental" to his client: "The boy was better off with a jury trial."
Counsel candidly admitted that it was only after the criminal trial had begun that an associate informed him that the transfer order of the juvenile court did not comply with Alabama Code Section 12-15-34 (d) (1975). The defect was that the written order, in determining whether the transfer motion should be granted, did not reflect consideration by the judge of the specific factors set out in the Code section. McKinneyv. State,
Although Cruse had no criminal record prior to this offense, "by the time the (transfer) hearing came up he did have other offenses . . . He tore hell out of the Youth Center."
Counsel testified that another reason for not appealing the transfer order was because Cruse was given special consideration by Judge Strickland after the order was granted and was allowed to remain at the Youth Center rather than being transferred to the county jail. Cruse was eventually removed to the county jail because he "would not obey the rules" at the Youth Center, was "tearing up" the Center, and started a riot and a hunger strike.
Relevant to this issue is the circuit court's denial of youthful offender treatment. The circuit judge who denied youthful offender treatment and presided over Cruse's criminal trial also conducted the coram nobis hearing. He stated, "I did conduct an examination and determined that due to the number of offenses — three major felonies — plus the severity of it, particularly the murder case, that I wouldn't arraign him as a youthful offender on that."
Appointed appellate counsel testified that he filed a brief listing the adverse rulings and a "no merit letter with this Court on appeal of Cruse's conviction." He admitted that he did not raise any issue about the transfer hearing.
Our review convinces us that the representation by trial and appellate counsel was not inadequate, incompetent, or ineffective.
Trial counsel's decision not to appeal the transfer order falls within the areas of a tactical decision and trial strategy and does not constitute egregious error, if error at all.
Most courts will not second guess the trial strategies of defense counsel.
"On reviewing ineffective assistance of counsel claims, we do not sit to second guess considered professional judgments with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d [1346] at 1355; Easter v. Estelle,
609 F.2d 756 (5th Cir. 1980). We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra,628 F.2d 410 (5th Cir. 1980), cert. denied,450 U.S. 934 ,101 S.Ct. 1398 ,67 L.Ed.2d 369 (1981); Buckelew v. United States,575 F.2d 515 (5th Cir. 1978); United States v. Beasley,479 F.2d 1124 ,1129 (5th Cir.), cert. denied,414 U.S. 924 ,94 S.Ct. 252 ,38 L.Ed.2d 158 (1973); Williams v. Beto,354 F.2d 698 (5th Cir. 1965). That an attorney's strategy may appear wrong in retrospect does not automatically mandate constitutionally ineffective representation. Baty v. Balkcom,661 F.2d 391 ,395 n. 8 (5th Cir. 1981); Baldwin v. Blackburn,653 F.2d 942 ,946 (5th Cir. 1981)."That counsel for a criminal defendant has not pursued every conceivable line of inquiry in a case does not constitute ineffective assistance of counsel. Lovett v. Florida,
627 F.2d 706 ,708 (5th Cir. 1980)."Ford v. Strickland,
676 F.2d 434 ,443 (11th Cir. 1982).
Here, as in Ford, because the record reveals counsel's representation was constitutionally adequate and there resulted no prejudice to petitioner by any action or inaction of counsel, Cruse has not carried his burden of proving ineffective assistance of counsel. *108
Even though counsel was not aware of the particular grounds which Cruse now argues could have been raised on appeal, the decision not to appeal the transfer order was a conscious decision and was not the result of neglect or ignorance.
"A transfer hearing is held not for the determination of guilt or innocence but is in the nature of a preliminary hearing to determine whether there is probable cause for believing that the allegations are true." Snow v. State,
Reviewing what information we have about these six factors, we find that the present offense was a "gruesome, cold-blooded, premeditated murder" of a sleeping victim which involved an attempted murder and assault upon two other victims. Cruse has no prior delinquency record although he was nearly a lifelong ward of the state and was "shunted" from foster home to foster home. Cruse's behavior in the Youth Center reflected on "the nature of past treatment efforts and the nature of the child's response to such efforts" as well as his "amenability to the juvenile system." At the transfer hearing, counsel raised the issue that Cruse and his younger brother were being "severely beaten" at the time of the murder. In his transfer order, the judge of the juvenile court specifically found "probable cause as to the allegation(s)" of murder and attempted murder and further found that "the boy cannot be properly disciplined under the Juvenile Court statutes of this State."
A detailed presentencing report filed as part of the record shows that Cruse has a history of violent and abusive behavior. An assessment conducted at Searcy State Hospital in February of 1981 states that Cruse is in the "Superior Range of intelligence", "that his capacity for guilt and remorse seemed very limited", and "that his judgment and insight are equally limited."
Our review convinces us that an appeal of the transfer order would have resulted in a reversal of that order for its failure to list the six statutory factors. However, as a practical matter, this would only have caused a delay in the prosecution of Cruse as an adult. Following this remand, from the evidence in this record it is almost certain that the juvenile judge would have merely rewritten his order as trial counsel anticipated and ordered the transfer. This finding is reinforced by the fact that the trial judge denied Cruse youthful offender treatment. "Counsel is not required to waste the court's time with futile or frivolous motions." UnitedStates v. Talavera,
The testimony shows that appellate counsel satisfied his duty under Anders v. California,
We note that this is an appeal from the denial of a petition for writ of coram nobis on which the petitioner had a substantial burden of proof. Corley v. State,
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.