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12/02/94 KEITH THOMAS INMIN v. STATE

December 2, 1994

KEITH THOMAS INMIN
v.
STATE



Appeal from Houston Circuit Court. CC-93-1049. Edward Jackson and Michael Crespi, TRIAL JUDGES.

Rule 39(k) Motion Denied January 13, 1995. Rehearing Denied January 13, 1995. Released for Publication April 22, 1995.

Bowen, Judge. All Judges concur.

The opinion of the court was delivered by: Bowen

BOWEN, JUDGE

Keith Thomas Inmin, the appellant, was convicted of theft of property in the first degree, was sentenced to five years' imprisonment, was fined $500, and was ordered to pay restitution in the amount of $70,000.

After his conviction, the appellant obtained new counsel, who filed a motion for a new trial, alleging that trial counsel had been ineffective. Following a hearing, the circuit court denied the motion. On this direct appeal of his conviction, the appellant raises five issues relating to the ineffectiveness of trial counsel.

A.

First, the appellant claims that his trial counsel was ineffective because he did not move to quash the indictment on the ground that the grand jury foreman was selected in a racially discriminatory manner.

Appellate counsel's amended motion for a new trial alleged that the indictment against the appellant was constitutionally defective because

"upon information and belief, African-Americans, women, young adults and other cognizable groups are systematically and discriminatorily excluded from serving as Grand Jury forepersons in Houston County.

". . . .

"Had the trial attorney filed a motion, based on Lee v. State, [631 So.2d 1059 (Ala.Cr.App.1993),] and Locke v. State, [631 So.2d 1062 (Ala.Cr.App.1993),] to dismiss the indictment based on discrimination in selection of the foreperson, the indictment against the defendant would have been dismissed and therefore the outcome of the case would have been changed, meeting the test under Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]." Supp. C.R. 15-16.

Lee v. State, and Locke v. State, held that the selection process of grand jury forepersons in Monroe County had been racially discriminatory. We fail to see how those decisions can serve as authority for the factual proposition that the grand jury foreperson of Houston County was selected in a discriminatory manner, or that counsel was ineffective for failing to challenge the indictment against the appellant on that ground.

During the hearing on his motion for a new trial, the appellant offered no evidence that the process of selecting the grand jury foreperson in Houston County was racially discriminatory. Here, as in Sistrunk v. State, 630 So.2d 147, 153 (Ala.Cr.App. 1993), the appellant simply failed to adduce any facts to support his allegation of a constitutional violation.

On appeal, the appellant has attached to his brief an addendum, which purports to be an order dated June 7, 1994, by Circuit Judge Michael Crespi finding, in an unrelated case, "systematic under-representation of black people" as forepersons of Houston County grand juries. "Exhibit A" to Brief of the Appellant. There is nothing in the record to indicate that the circuit Judge who conducted the June 28, 1994, hearing on the appellant's motion for a new trial was asked to, or did, take judicial notice of the June 7 order. As we observed under the same circumstances in Huff v. State, 596 So.2d 16, 19 (Ala.Cr.App. 1991), "attachments to briefs are not considered part of the record and therefore cannot be considered on appeal." "Allegations in appellant's brief reciting matters not disclosed in the record cannot be considered." Moon v. State, 580 So.2d 87, 88 (Ala.Cr.App. 1991).

Moreover, even if Judge Crespi's order had been admitted at the hearing on the motion for a new trial, that document -- dated June 7, 1994 -- would not have established that trial counsel was ineffective for failing to challenge the indictment in this case. The appellant was indicted on April 6, 1993, and tried on February 2, 1994, four months before Judge Crespi's order. Counsel cannot be held ineffective for failing to predict the future course of the law. State v. Tarver, 629 So.2d 14, 18-19 (Ala.Cr.App. 1993); Duren v. State, 590 So.2d 360, 365 (Ala.Cr.App. 1990), aff'd, 590 So.2d 369 (Ala. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992); James v. State, 564 So.2d 1002, 1005-06 (Ala.Cr.App. 1989); Morrison v. State, 551 So.2d 435, 439 (Ala.Cr.App. 1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990).

The appellant has failed to prove that his counsel was ineffective on the first ground alleged.

B.

The appellant contends that counsel was ineffective because he did not object to the following portions of the court's oral charge:

1. "The Court charges you, the jury, that after considering the evidence tending to show guilt together with that tending to show innocence, it would spring up voluntarily in your minds from any part of the evidence a probability of the innocence of the Defendant, then you must find the Defendant not guilty." R. 157 (emphasis added).

2. "The Court charges you, the jury, that the humane provision of the law is that there should not be a conviction upon the evidence unless, to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused." R. 157 (emphasis added).

The phrase in the first charge concerning whether the probability of innocence should "spring up voluntarily" in the minds of the jurors is flawed. The approved form of the instruction is that the probability should "spring up in voluntarily." See Wilson v. State, 243 Ala. at 18, 8 So.2d at 438; Smith v. State, 182 Ala. 38, 40, 50, 62 So. 184, 186, 188 (1913); Funches v. State, 53 Ala.App. 330, 337-38, 299 So.2d 771, 777-78, cert. denied, 293 Ala. 752, 299 ...


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