Reed v. StateReed v. State
In his petition, Reed raises two issues. However, he amended the petition to include an additional issue. Without conducting an evidentiary hearing, the circuit judge reviewing the petition, who was not the judge who had presided at Reed‘s trial, dismissed the petition with a written order. (C. 94-97.) Reed appeals, arguing that the trial court erred to reversal by (1) failing to find that Reed had been denied effective assistance of counsel,1 (2) failing
We apply an abuse of discretion standard of review to the circuit court‘s denial of a
I.
Reed argues that the trial court erred by denying his petition because, he says, he was denied effective assistance of counsel. Specifically, he contends that his counsel was ineffective because his counsel (1) failed to move to quash the indictment that Reed says did not satisfy
To prevail on an ineffective-assistance-of-counsel claim, Reed must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Specifically, Reed must show (1) that his counsel‘s performance was deficient and (2) that he was prejudiced by this deficient performance. Id. Moreover, he must prove that the outcome of his trial would have been different but for counsel‘s deficient performance. See Twyman v. State, 565 So.2d 1215 (Ala.Cr.App. 1990).
A.
In his first allegation of ineffective assistance of counsel, Reed argues that the circuit court abused its discretion by dismissing Reed‘s claim that his counsel was ineffective for failing to move to quash the indictment. Reed says the indictment did not satisfy the requirements of
“All indictments must be presented to the court by the foreman of the grand jury in the presence of at least 11 other jurors, must be endorsed `filed’ and must have the endorsement dated and signed by the clerk; but no entry of an indictment found must be made on the minutes, nor must any indictment be inspected by any other person than the district attorney, the presiding judge and the clerk of the court until the defendant has been arrested or has given bail for his appearance.”
The record on direct appeal indicates that the indictment satisfied the requirements of
Moreover, even assuming that the indictment did not satisfy the requirements of
B.
Reed next argues that the circuit court improperly dismissed his claim that his counsel was ineffective for failing to challenge an in-court-identification of Reed by a victim of a previous offense. The trial court permitted the witness to testify about the incident with Reed in order to show motive. Specifically, he contends that his counsel‘s failure to challenge the victim‘s in-court-identification violated his due process rights under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Before the trial, the trial court held a hearing to determine the prior victim‘s ability to identify Reed as her attacker. During the prior victim‘s testimony, she was subjected to extensive cross-examination by Reed‘s counsel. (Record on direct appeal, 138-40.) She was also subjected to extensive cross-examination at trial. (Record on direct appeal, 408-18.) Therefore, Reed‘s counsel was not deficient; his counsel challenged the prior victim‘s identification of Reed on cross-examination. See Strickland, supra; see also Hayes v. State, 706 So.2d 1279 (Ala.Cr.App. 1997).
C.
Reed further argues that the circuit court erred in dismissing his claim that his counsel was ineffective for failing to advise Reed of his right to testify at trial. This issue is procedurally barred because Reed did not raise this issue in his postconviction petition. “An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.” Arrington v. State, 716 So.2d 237, 239 (Ala.Cr.App. 1997); see also Cleveland v. State, 570 So.2d 855 (Ala.Cr.App. 1990); Morrison v. State, 551 So.2d 435 (Ala.Cr.App. 1989).
D.
Reed also argues that the circuit court erred in dismissing his claim that his counsel was ineffective for failing to object to the victim‘s repeatedly stating during her testimony that she was raped. This argument is without merit. The victim testified that she told the police officer that she was “raped,” which she said only twice. (Record on direct appeal, 203.) Reed‘s counsel was not deficient in not objecting to this statement because the victim‘s testimony did not invade the province of the jury. In fact, the victim is allowed to testify to the ultimate issue of the case. See Hampton v. State, 620 So.2d 99 (Ala.Cr.App. 1992) (holding that conclusory expert testimony that injuries were consistent with forcible intercourse did not invade the province of the jury). See also Moss v. State, 545 So.2d 230 (Ala.Cr.App. 1989).
E.
Reed next argues that the circuit court abused its discretion in finding that Reed‘s counsel was not ineffective for failing to object when the State, he says, unconstitutionally used prior convictions to enhance Reed‘s sentence. Specifically, he contends that the State failed to prove that he was represented by counsel or that he had waived his right to counsel on the prior convictions that were used to enhance
F.
Reed further argues that the trial court erred in dismissing his claim that his counsel was ineffective for failing to challenge the arrest warrant. Specifically, he argues that the officers did not have probable cause to arrest him.
The indictments are contained in the record on direct appeal. “`“On the question of probable cause, it is well established that the indictment itself, together with proof that the defendant is the one named in it, is prima facie evidence of probable cause.“‘” George v. State, 717 So.2d 827, 837 (Ala.Cr.App. 1996), reversed on other grounds, quoting Roynica v. State, 54 Ala. App. 436, 441, 309 So.2d 475, 478-79 (1974). Here, Reed‘s counsel was not deficient for failing to object to the arrest warrant because the indictments clearly establish probable cause. (Record on direct appeal, 23-31.)
G.
Reed also argues that the circuit court abused its discretion in finding that Reed‘s counsel was not ineffective for allegedly failing to object when the trial court did not administer an oath to the voir dire. He further asserts that the record is silent as to whether the oath was given, and thus, a presumption cannot be made on a silent record.
We agree with the trial court‘s finding that this claim is not sufficiently pleaded.
II.
Reed argues that the court erred in denying the petition without conducting an evidentiary hearing. Reed challenged his three convictions in this one Rule 32 petition. He argues that the circuit court erred by dismissing the petition as to two of the three convictions. Specifically, he contends that the trial court should not have dismissed the petition as to those two convictions because all three convictions arose from the same proceeding. We agree.
The trial court‘s order states
“The Petitioner has filed a single Rule 32 Petition attacking his convictions in CC-93-1035, CC-93-1036, and CC-93-1037. The Alabama Court of Criminal Appeals in Knight v. State, CR-97-0405 (Ala.Crim.App. 1999), stated that a petitioner must file a separate petition to attack each conviction. In the Knight case, the petitioner had filed a single Rule 32 Petition attacking his convictions on 2 cases. In the present case, petitioner Marshall Van Reed has filed a single Rule 32 Petition attacking 3 of his convictions in CC-93-1035, CC-93-1036 and CC-93-1037. “Wherefore, this Court dismisses Petitioner‘s Rule 32 Petition attacking CC-93-1036 and CC-93-1037 as these cases are not properly before the Court.”
(C. 94-95.)
The trial court‘s interpretation of Knight is erroneous. In Knight, this court
REMANDED WITH INSTRUCTIONS.
Long, P.J., and McMillan, Baschab, and Fry, JJ., concur.