December 19, 2014
State of Alabama
Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
from Mobile Circuit Court. (CC-09-225.60; CC-09-226.60;
CC-09-227.60; and CC-09-228.60).
Morrissette, Appellant, Pro se.
Appellee: Luther Strange, Atty. Gen., and Robin D. Scales,
Asst. Atty. Gen.
Judge. Windom, P.J., and Welch, Burke, and Joiner, JJ.,
On Return to Remand
Morrissette appeals the circuit court's denial of his
petition for postconviction relief filed pursuant to Rule 32,
Ala. R. Crim. P., in which he attacked his 2010 convictions
for one count of attempted murder, one count of first-degree
assault, and two counts of discharging a firearm into an
occupied vehicle, and his resulting sentences of life
imprisonment for the attempted-murder and assault convictions
and 20 years' imprisonment for the two
This Court affirmed Morrissette's convictions and
sentences on direct appeal in an unpublished memorandum
issued on September 30, 2011. Morrissette v. State,
114 So.3d 164 (Ala.Crim.App. 2011) (table). The Alabama
Supreme Court denied certiorari review, and this Court issued
a certificate of judgment on December 9, 2011.
filed the instant petition, his first, on or about October 1,
2012. In his petition, Morrissette alleged:
(1) That his trial counsel was ineffective for not allowing
him to testify on his own behalf and for making allegedly
prejudicial comments to the jury during opening statements;
(2) That his conviction was obtained by the action of a petit
jury that was unconstitutionally selected because, he said,
the trial court erred in not striking for cause prospective
juror no. 11; and
(3) That his conviction was obtained by the use of "
unduly prejudicial" evidence, specifically his statement
to police, which, he said, contained comments regarding other
crimes that were redacted, but which the trial court failed
to instruct the jury about. (C. 71.)
March 27, 2013, Morrissette filed a motion to amend his
petition, in which he raised several additional claims. On
April 1, 2013, the circuit court denied the motion to
March 14, 2014, the State filed a response and motion to
dismiss Morrissette's petition, arguing that claim (1),
as set out above, was meritless, that claim (2), as set out
above, was precluded by Rules 32.2(a)(2) and (a)(5), Ala. R.
Crim. P., and that claim (3), as set out above, was precluded
by Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P. The State
attached to its motion several exhibits, including an
affidavit from Morrissette's trial counsel. On March 17,
2014, the circuit court issued orders denying
Morrissette's petition on the grounds asserted by the
order dated August 15, 2014, this Court remanded this case
for the circuit court to allow Morrissette an opportunity to
prove that portion of claim (1) in which he alleged that his
trial counsel was ineffective for refusing to allow him to
testify on his own behalf. We held that Morrissette's
claim in this regard was sufficiently pleaded, was not
was meritorious on its face, i.e., that, if the facts alleged
were true, Morrissette would be entitled to relief. On
remand, the circuit court complied with our instructions. The
circuit court appointed counsel to represent Morrissette and
conducted an evidentiary hearing on October 1, 2014, at which
Morrissette was given the opportunity to present evidence
regarding his claim. On October 14, 2014, the circuit court
issued an order denying Morrissette's claim.
Neither party requested permission to file briefs on return
to remand; therefore, we proceed based solely on the
parties' original briefs.
[W]hen 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). " However,
where there are disputed facts in a postconviction proceeding
and the circuit court resolves those disputed facts,
'[t]he standard of review on appeal ... is whether the
trial judge abused his discretion when he denied the
petition.'" Boyd v. State, 913 So.2d 1113,
1122 (Ala.Crim.App. 2003) (quoting Elliott v. State,
601 So.2d 1118, 1119 (Ala.Crim.App. 1992)).
32.7(d), Ala. R. Crim. P., authorizes the circuit court to
summarily dismiss a petitioner's Rule 32 petition
" [i]f the court determines that the petition is not
sufficiently specific, or is precluded, or fails to state a
claim, or that no material issue of fact or law exists which
would entitle the petitioner to relief under this rule and
that no purpose would be served by any further proceedings
Rule 32.3, Ala. R. Crim. P., states 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." Rule 32.6(b), Ala. R. Crim.
P., states that " [t]he petition must contain a clear
and specific statement of the grounds upon which relief is
sought, including full disclosure of the factual basis of
those grounds. A bare allegation that a constitutional right
has been violated and mere conclusions of law shall not be
sufficient to warrant any further proceedings." As this
Court noted in Boyd v. State, 913 So.2d 1113
" 'Rule 32.6(b) requires that the petition itself
disclose the facts relied upon in seeking relief.'
Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.
other words, it is not the pleading of a conclusion
'which, if true, entitle[s] the petitioner to
relief.' Lancaster v. State, 638 So.2d 1370,
1373 (Ala.Crim.App. 1993). It is the allegation of facts in
pleading which, if true, entitle[s] a petitioner to relief.
After facts are pleaded, which, if true, entitle the
petitioner to relief, the petitioner is then entitled to an
opportunity, as provided in Rule 32.9, Ala. R. Crim. P., to
present evidence proving those alleged facts."
913 So.2d at 1125.
Once a petitioner has met his burden .... to avoid summary
disposition pursuant to Rule 32.7(d), Ala. R. Crim. P., he is
then entitled to an opportunity to present evidence in order
to satisfy his burden of proof." Ford v. State,
831 So.2d 641, 644 (Ala.Crim.App. 2001).
32.9(a), Ala. R. Crim. P., provides:
" Unless the court dismisses the petition, the
petitioner shall be entitled to an evidentiary hearing to
determine disputed issues of material fact, with the right to
subpoena material witnesses on his behalf. The court in its
discretion may take evidence by affidavits, written
interrogatories, or depositions, in lieu of an evidentiary
hearing, in which event the presence of the petitioner is not
required, or the court may take some evidence by such means
and other evidence in an evidentiary hearing."
In Wilkerson v. State, 70 So.3d 442, 451
(Ala.Crim.App. 2011), this Court explained:
" 'The burden of proof in a Rule 32 proceeding rests
solely with the petitioner, not the State.' Davis v.
State, 9 So.3d 514, 519 (Ala.Crim.App. 2006), rev'd
on other grounds, 9 So.3d 537 (Ala. 2007). '[I]n a Rule
32, Ala. R. Crim. P., proceeding, the burden of proof is upon
the petitioner seeking post-conviction relief to establish
his grounds for relief by a preponderance of the
evidence.' Wilson v. State, 644 So.2d 1326, 1328
(Ala.Crim.App. 1994). Rule 32.3, Ala. R. Crim. P.,
specifically provides that '[t]he petitioner shall have
the burden of ... proving by a preponderance of the evidence
the facts necessary to entitle the petitioner to
70 So.3d at 451.
these principles in mind, we now review each of the claims
raised by Morrissette in turn.
(2) and (3), as set out above -- that Morrissette's
conviction was obtained by the action of a petit jury that
was unconstitutionally selected and was obtained by the use
of unduly prejudicial evidence -- are nonjurisdictional
claims subject to the preclusions in Rule 32.2. See Giles
v. State, 906 So.2d 963, 980 (Ala.Crim.App. 2004)
(challenge to failure to remove juror for cause is not
jurisdictional), overruled on other grounds, Ex parte
Jenkins, 972 So.2d 159 (Ala. 2005); and Boyd v.
State, 746 So.2d 364, 404 (Ala.Crim.App. 1999)
(challenge to the admissibility of evidence is subject to the
preclusions in Rule 32.2). Specifically, these claims are
precluded by Rule 32.2(a)(5) because they could have been,
but were not, raised and addressed on appeal. Therefore, the
circuit court's summary dismissal of these claims was
proper under Rule 32.7(d).
(1), as set out above, contains two allegations of
ineffective assistance of counsel, each of which we address
in turn bearing in mind the following principles.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court
articulated two criteria that must be satisfied to show
ineffective assistance of
counsel. A defendant has the burden of showing (1) that his
or her counsel's performance was deficient and (2) that
the deficient performance actually prejudiced the defense. To
prove prejudice, " [t]he defendant must show that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." 466 U.S. at 694. " A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
Furthermore, " a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance." 466 U.S. at 689.
first allegation, Morrissette alleged that his trial counsel
was ineffective for not allowing him to testify on his own
behalf. On remand, the circuit court denied this claim after
an evidentiary hearing. The circuit court made the following
findings in its October 14, 2014, order on remand:
" [Morrissette] appeared in Court with his appointed
counsel ... for the evidentiary hearing. After being advised
of his right to testify during this evidentiary hearing,
[Morrissette] chose not to testify. [Morrissette] did call
three witnesses on his behalf.
" [Morrissette] first called his mother, Lydia
Morrissette. Lydia Morrissette testified that [Morrissette]
advised her that he wanted to testify. TR9, 12. He
communicated this to her via letters and phone calls. TR 9.
12. Lydia Morrissette did not bring any of the letters to the
hearing. TR 12, However, when asked if [Morrissette]
communicated this to anyone else Lydia Morrissette testified
'To my knowledge, no. I don't know.' TR9, 10. She
also said she met with the trial attorney ... outside the
courtroom and that the trial attorney ... 'said he
didn't want Cedric to testify because he didn't want
Ced to mess himself up or something.' TR 11.
" [Morrissette] also presented the testimony of his
sister, Christina Morrissette, Christina Morrissette
testified that she did not recall whether her brother ...
ever conveyed to her a desire to testify. TR13. Both Lydia
Morrissette and Christina Morrissette testified that they
never overheard or were present during any communication
between [Morrissette] and his trial counsel ... regarding
'whether [he] would be testifying.' TR13, 15-16.
Christina Morrissette did testify that before trial while
outside the courtroom the trial attorney ... did advise
'that he did not want Ced to testify.' TR 14, 15.
" [Morrissette's] trial counsel, Randy Arnold
(hereinafter referred to as 'Arnold') also testified
during the hearing. Arnold testified that [Morrissette] never
informed him during trial preparation that he wanted to
testify. TR18. Arnold also testified that [Morrissette] never
indicated that he wanted to testify. TR19, 22. Arnold further
testified that he advised [Morrissette] of his right to
testify '[b]oth before and during trial.' TR22,
26-33. Arnold pointed to page 634 of the 2010 trial
transcript and testified that at one point he turned and
asked [Morrissette] if he wanted to testify and [Morrissette]
advised him no. TR33-34. Arnold testified that he never
denied [Morrissette] his right to testify and did not tell
[Morrissette] that he could not testify in his own behalf.
TR35. In an extended answer, trial attorney Arnold described
how he counseled with [Morrissette] about his right to
testify and the risks to the defense if [Morrissette] did so.
See TR 26-33. In
pertinent part, Arnold testified to the following:
" '... And I remember turning to him and saying,
okay, we're at that point, do you want to testify or not?
This is what the Judge is wanting to know right now. And he
said to me, what do you think? And I told him, Cedric, under
the circumstances I don't think it's necessary. I
think it's got more risk. I think it's got more
danger than it can have potential good. They've already
heard your side of the story because they've heard the
statements from the detectives and recording live, your voice
and theirs. I think the risks are not good. If you get on,
and it can only potentially get worse in my opinion, but
it's still your choice. And he said okay, if that's
what you want, if that's what you feel, then I'll go
with that. But I've never, never in my entire career --
I've made mistakes like we all have, but I have never
made a client testify or prohibited them from
" On examination by [Morrissette's] attorney at the
hearing, former trial attorney Arnold admitted that
[Morrissette] had filed a bar complaint against Arnold for
'not letting [Morrissette] testify.' TR 25. However,
Arnold testified he had 'never received anything from
them about that.' TR 26.
" [Morrissette] only offered the testimony of his mother
and sister for the proposition that he told them of his
interest in testifying. However, [Morrissette] failed to put
forth any testimony during this evidentiary hearing that his
trial counsel failed to advise him of his right to testify or
that his trial counsel refused to allow him to testify. The
testimony of the mother and sister also was that they did not
overhear any conversations between the trial attorney and
[Morrissette] regarding the issue of testifying at trial.
" The evidence actually presented indicates that
[Morrissette] never conveyed his desire to testify to his
trial counsel. The evidence is that former trial attorney
Arnold reviewed the facts and circumstances surrounding this
case with [Morrissette], as well as the pros and cons of
[Morrissette] testifying. The evidence also shows
[Morrissette] was aware that he had the choice to testify
and, after consultation with Arnold, chose not to.
" This Court therefore finds that [Morrissette] received
effective assistance of counsel. There was no evidence that
[Morrissette's] 2010 trial counsel refused to allow
[Morrissette] to testify -- only that the trial counsel
believed it was better that [Morrissette] not testify. There
was no testimony or evidence offered at all at the hearing
about the substance of any direct communications between
[Morrissette] and the 2010 trial counsel other than that of
the trial counsel. The evidence was that [Morrissette] was
allowed the opportunity to testify and, after consultation
with trial counsel, made the decision not to testify during
the 2010 trial of these matters."
(Record on Return to Remand, C. 56-58.)
circuit court's findings are supported by the evidence
presented at the hearing conducted on remand, and we adopt
those findings as part of this opinion. As the circuit court
noted, Morrissette failed to present any evidence indicating
that his trial counsel, Randy Arnold, refused to allow him to
testify on his own behalf. The testimony of his mother and
sister, although indicating that Morrissette at some point
wanted to testify on his own behalf, in no way suggested that
Arnold refused to allow Morrissette to testify.
Additionally, Morrissette chose not to testify at the hearing
on his own behalf. The only remaining evidence presented at
the hearing -- the testimony of Arnold -- established that
Morrissette was not denied his right to testify and that
Arnold in no way prevented Morrissette from testifying.
Rather, Arnold's testimony established that
Morrissette's decision not to testify was his own.
Therefore, Arnold was clearly not ineffective in this regard,
and the circuit court properly denied this claim on remand.
second ineffective-assistance allegation, Morrissette alleged
that his trial counsel was ineffective for making allegedly
prejudicial comments to the jury during opening statements.
Specifically, Morrissette asserted that his counsel, at the
beginning of opening statements, made the following
" 'Ladies and gentlemen, in fifteen years
there's never been a case that I've been involved in
where I've agreed with the Prosecutor more than I have in
this particular case. I could easily if she [the assistant
district attorney] would allow and I was not involved with
one of the Defendants, would gladly help her
(C. 62.) According to Morrissette, this statement by his
counsel led the jurors to believe that Morrissette's own
counsel believed that he was guilty of the charged crimes and
unduly prejudiced his case.
claim was not sufficiently pleaded to satisfy the
requirements in Rules 32.3 and 32.6(b), Ala. R. Crim. P. As
this Court explained in Hyde v. State, 950 So.2d 344
" The burden of pleading under Rule 32.3 and Rule
32.6(b) is a heavy one. Conclusions unsupported by specific
facts will not satisfy the requirements of Rule 32.3 and Rule
32.6(b). The full factual basis for the claim must be
included in the petition itself. If, assuming every factual
allegation in a Rule 32 petition to be true, a court cannot
determine whether the petitioner is entitled to relief, the
petitioner has not satisfied the burden of pleading under
Rule 32.3 and Rule 32.6(b). See Bracknell v. State,
883 So.2d 724 (Ala.Crim.App. 2003). To sufficiently plead an
allegation of ineffective assistance of counsel, a Rule 32
petitioner not only must 'identify the [specific] acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment,'
Strickland v. Washington, 466 U.S. 668, 690, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead
specific facts indicating that he or she was prejudiced by
the acts or omissions, i.e., facts indicating 'that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.' 466 U.S. at 694, 104 S.Ct. 2052. A
bare allegation that prejudice occurred without specific
facts indicating how the petitioner was prejudiced is not
950 So.2d at 356.
case, although Morrissette identified the specific act or
omission by counsel that he believed constituted deficient
performance -- the remark that counsel made at the beginning
of opening statement -- he failed to allege sufficient facts
indicating how he was prejudiced by counsel's remark. It
is well settled that arguments of counsel must be viewed in
the context of the entire trial and not in isolation.
See, e.g., Wilson v. State, 777 So.2d 856, 893
(Ala.Crim.App. 1999), aff'd, 777 So.2d 935 (Ala. 2000).
Moreover, " statements of counsel are not
evidence." Mashburn v. State, 148 So.3d 1094
(Ala.Crim.App. 2013). Morrissette, however,
failed to plead in his petition the context in which
counsel's remark was made. He made bare assertions that
counsel's remark prejudiced him, but he failed to plead
any facts to support those bare assertions, i.e., facts
indicating that, but for counsel's remark, there is a
reasonable probability that the outcome of the trial would
have been different. Therefore, Morrissette failed to
sufficiently plead this claim of ineffective assistance of
in its March 17, 2014, order of dismissal, the circuit court
found this claim to be meritless based on the record,
stating, in relevant part:
" [Morrissette] also claims he was denied effective
assistance of counsel because his trial counsel made improper
remarks during his opening statement which unduly prejudiced
him. Specifically,, [Morrissette] claims his trial counsel
told the jury that if he were able he would prosecute this
case himself. This claim also fails. The quoted portion of
[Morrissette's] trial counsel's statement is taken
out of context. [Morrissette's] trial counsel in fact
stated that he would prosecute this case due to the senseless
nature of the shooting, but that he was involved on
[Morrissette's] behalf because he saw a difference in
what [Morrissette] was alleged to have done. See State's
" Additionally, the arguments of counsel are not
evidence and the trial court instructed the jury that what
the lawyers told them was not evidence. See State's
Exhibit E; see also Stallworth v. State, [[Ms.
CR-09-1433, November 8, 2013] 171 So.3d 53 (Ala.Crim.App.
2013)]. It is also well settled that jurors are presumed to
follow not disregard a trial court's instructions. See
id., quoting Brooks v. State, 973 So.2d 380, 409
(C. 183.) We agree with the circuit court's findings and
adopt them as part of this opinion.
claim is based on a single remark by his counsel during
opening statement that Morrissette has taken completely out
of context. When viewed in context, it is clear that counsel
was not telling the jury that he believed that Morrissette
was guilty of the charged crimes and that he wanted to
prosecute Morrissette, but rather, was pointing out that he
was defending Morrissette against the charged crimes because
Morrissette was not the primary perpetrator, i.e., was not
the shooter, and that he would like to prosecute the actual
shooters, not Morrissette. Moreover, the record reflects that
the trial court properly instructed the jury that arguments
of counsel are not evidence, and " [j]urors are presumed
to follow the court's instructions." Hosch v.
State, 155 So.3d 1048, 1090 (Ala.Crim.App. 2013).
these reasons, the circuit court properly summarily dismissed
this claim of ineffective assistance of counsel.
on the foregoing, the judgment of the circuit court is
P.J., and Welch, Burke, and Joiner, JJ., concur.
Morrissette does not argue on appeal that
the circuit court erred in denying his motion to amend, nor
does he reassert in his initial brief on appeal any of the
claims from his motion to amend. Although in his initial
brief Morrissette mentions the court's denial of the
motion to amend, the only argument Morrissette makes is that
this Court should accept the allegations in his amendment as
true. Because Morrissette does not challenge the propriety of
the circuit court's denial of his motion to amend,
that issue is not before this Court for review. Moreover,
although Morrissette attached to his initial brief on appeal
a copy of his motion to amend, it is well settled that "
attachments to briefs ... cannot be considered on
appeal." Huff v. State, 596 So.2d 16, 19
(Ala.Crim.App. 1991). Therefore, Morrissette's attachment
cannot be considered a reassertion by Morrissette of the
claims raised in his motion to amend. We note that
Morrissette does reassert in his reply brief on appeal the
claims raised in his motion to amend. However, " [i]t is
a well-established principle of appellate review that we will
not consider an issue not raised in an appellant's
initial brief, but raised only in the reply brief."
Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173
(Ala. 2005). Because Morrissette did not argue in his initial
brief on appeal the claims from his motion to amend and
because the motion to amend was denied by the circuit court
and that ruling is not challenged on appeal, the claims in
Morrissette's motion to amend are not properly before
this Court for review and will not be considered.
The circuit court issued a separate order
in each case number.
We note that on October 7, 2014,
Morrissette filed a motion to amend his petition, in which he
alleged that newly discovered material facts entitled him to
a new trial. The circuit court properly did not consider this
amended claim on remand. First, because this motion to amend
was filed after the circuit court's summary dismissal of
Morrissette's petition on March 17, 2014, it was
untimely. See Rule 32.7(b), Ala. R. Crim. P. ( "
Amendments to pleadings may be permitted at any stage of the
proceedings prior to the entry of judgment." (emphasis
added)); and Bryant v. State, [Ms. CR-08-0405,
September 5, 2014] __ So.3d __, __ (Ala.Crim.App. 2011)
(opinion on return to second remand) (" [B]ecause this
Court's remand in this case did not set aside the circuit
court's October 27, 2008, summary dismissal of
Bryant's first amended petition, Bryant's second
amended petition was clearly untimely, having been filed
after entry of judgment, and was properly stricken by the
circuit court." ). Second, this Court's remand order
did not permit Morrissette to amend his petition on remand.
Therefore, the circuit court had no authority to go
beyond this Court's remand order and to consider an
amendment to Morrissette's petition because " any
act by a trial court beyond the scope of an appellate
court's remand order is void for lack of
jurisdiction." Anderson v. State, 796 So.2d
1151, 1156 (Ala.Crim.App. 2000) (opinion on return to
remand). Moreover, Morrissette does not pursue his
newly-discovered-material-facts claim in his brief on appeal.
For these reasons, we do not consider Morrissette's
newly-discovered-material-facts claim in this appeal.
 This Court may take judicial notice of its
own records. See Nettles v. State, 731 So.2d
626, 629 (Ala.Crim.App. 1998), and Hull v. State,
607 So.2d 369, 371 n.1 (Ala.Crim.App. 1992).