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Hutcherson v. State

Alabama Court of Criminal Appeals

July 7, 2017

Antonio Dontae Hutcherson
State of Alabama

         Appeal from Tuscaloosa Circuit Court (CC-15-1134)

          PER CURIAM.

         The appellant, Antonio Dontae Hutcherson, was convicted of burglary in the first degree, a violation of § 13A-7-5, Ala. Code 1975; robbery in the first degree, a violation of § 13A-8-41, Ala. Code 1975; and robbery in the second degree, a violation of § 13A-8-42, Ala. Code 1975. The circuit court sentenced Hutcherson to 20 years' imprisonment for each conviction; these sentences were split and Hutcherson was ordered to serve 5 years' imprisonment followed by 5 years' supervised probation. The sentences were to run concurrently. The circuit court ordered Hutcherson to pay $150 to the crime victims compensation fund.

         The record indicates the following pertinent facts.[1] In 2014, Henry LaFonda Calhoun spent Christmas day with his family in the Crescent East apartments in Tuscaloosa. Around 10:00 p.m., Calhoun went to Dionysius Paige's residence at the same apartment complex. Calhoun had been staying with Paige for several months while Calhoun was separated from his girlfriend. Calhoun slept in a recliner in the living room, Paige slept on the sofa, and Paige's cousin slept in the only bedroom in the apartment.

         Sometime during the night, Paige was awakened by a "kicking noise" and opened the front door to determine the source of the noise. (R. 22.) When Paige opened the door, Jonathan Williams, whom Paige only knew as "Munchie, " approached the door and asked if Paige had been "with some dude out there." (R. 23-24.) Paige told Williams that he had not "been with anybody doing anything out there earlier that night." (R. 24.) Without any warning, Williams barged into the apartment and began punching Paige in the face. Paige observed more men entering the apartment and fled to the bathroom and locked the door. Inside the bathroom, Paige could hear a "rumbling noise" that sounded like the men were "doing something" to Calhoun. (R. 26.)

         Calhoun woke up when he heard Paige arguing with someone at the front door. Calhoun heard Williams "swinging, telling [Paige] he can get some." (R. 47.) Calhoun heard Williams talking about a man named "J5" and asked what was going on. (R. 48.) Williams then turned and punched Calhoun in the eye and Paige ran away to the bathroom. Calhoun, who was lying in the recliner at the time, attempted to get up; however, Williams jumped on him and continued to punch him in the face.

         Someone else entered the apartment and said, "[w]e got this, " and began to punch Calhoun so that Williams could kick down the bathroom door and get to Paige. (R. 50.) A third man told the man who was punching Calhoun to "check his pockets." (R. 50.) The men took $50 in cash and a "[h]alf ounce of reefer" out of Calhoun's pockets. (R. 67.) Calhoun, whose eye had swollen shut from the attack, lost consciousness and woke up on the couch. Calhoun testified that he felt like he might have been hit with an object during the attack. Calhoun telephoned 911; however, he let Paige and Paige's cousin finish the conversation with the 911 dispatcher.

         Although Calhoun was unable to see clearly during the attack because of the injury to his eye, he heard one of the men yell repeatedly that, "[w]e got [Calhoun]." (R. 51.) Calhoun testified that he recognized the voice as Hutcherson's voice and said that he was "one hundred percent positive" in his identification. (R. 52.) Calhoun testified that he had known Hutcherson since Hutcherson was a child and that he considered Hutcherson family because Hutcherson's uncle had a child with Calhoun's sister. Calhoun testified that Hutcherson and Williams were very close friends and "[i]f you see one, you see the other one." (R. 60.) Calhoun testified that he saw both of them together earlier on the day of the incident. When asked whether he believed that Hutcherson was in the apartment with Williams during the attack, Calhoun answered that there was "[n]o doubt in [his] mind." (R. 60.)

         Following the attack, a bloodstained piece of a cinder block was found in the apartment; the unbroken block had been sitting on a table inside of the apartment before the attack. Calhoun sustained "a knot" on his head and a cut that required several stitches to close. (R. 54.) Calhoun testified that his eye was seriously injured and swollen from the attack. Calhoun testified that he was released from the hospital a few hours following the incident but had to return later that day because he "had bleeding on the brain." (R. 55.) Calhoun stated that he still experienced headaches and could only "half see" out of the eye that was damaged in the attack. (R. 55.)

         Hutcherson called Williams to testify in his defense. Williams admitted that he was inside the apartment at the time of the attack and said that the only people inside the apartment with him at that time were "Raheem Davis, Dionysius Paige, and Henry Calhoun." (R. 92.)

         During the prosecution's cross-examination of Williams, Williams admitted that he had pleaded guilty to the crime. Williams testified that he and Paige got into an argument over gambling on the night of the incident. Williams testified that the argument turned into a physical altercation. According to Williams, the physical altercation started on the front porch and carried into the apartment. Williams said that he punched Paige several times before Paige ran to the bathroom. When Calhoun asked what was going on, Williams turned and punched him in the face several times, including one punch that hit Calhoun's left eye. After attacking Calhoun, Williams kicked open the bathroom door and resumed his attack on Paige.

         Williams admitted that he had known Hutcherson from Alberta City for three or four years at the time of the incident. According to Williams, Hutcherson was unconscious about a block away from the apartment on the night of the incident. Williams testified that he and Davis had encountered Hutcherson lying on the curb but were unable to wake him until after they had left Paige's apartment.

         After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Hutcherson guilty of burglary in the first degree, robbery in the first degree, and robbery in the second degree. Hutcherson filed a timely motion for a new trial in which he alleged, among other things, that his attorney had rendered ineffective assistance at trial. After conducting an evidentiary hearing, the circuit court issued a written order denying Hutcherson's motion for a new trial. This appeal followed.


         Hutcherson reiterates his various claims of ineffective assistance of trial counsel raised in his timely motion for a new trial. Specifically, Hutcherson argues that his trial counsel was ineffective because his counsel: failed to request a limiting instruction on Williams's guilty-plea-colloquy transcript; failed to impeach Calhoun with prior inconsistent statements; failed to object to inadmissible evidence; allowed the prosecutor to make improper comments to the jury during closing arguments; failed to object to the use of leading questions by the prosecutor; failed to object to a lack of chain of custody for the cinder block; displayed a lack of preparation and confusion at trial; and allowed improper evidence to be admitted at trial.

"'"'It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.'"' Hosea O. Weaver & Sons, Inc. v. Towner, 663 So.2d 892, 895 (Ala. 1995)(quoting Kane v. Edward J. Woerner & Sons, Inc., 543 So.2d 693, 694 (Ala. 1989), quoting in turn Hill v. Sherwood, 488 So.2d 1357 (Ala. 1986))."

Ex parte Hall, 863 So.2d 1079, 1081-82 (Ala. 2003).

         In McNair v. State, 706 So.2d 828 (Ala.Crim.App.1997), this Court explained:

"In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test set out by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.'

"Id. at 687, 104 S.Ct. at 2064.

"'The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under "prevailing professional norms, " was "reasonable considering all the circumstances."' Daniels v. State, 650 So.2d 544, 552 (Ala. Cr. App. 1994)(quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). Once a defendant has identified the specific acts or omissions that allegedly were not the result of reasonable professional judgment on counsel's part, the court must determine whether those acts or omissions fall outside the wide range of professionally competent assistance. Id.
"When reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala. Cr. App. 1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); Luke v. State, 484 So.2d 531 (Ala. Cr. App. 1985).
"'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.'
"Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala. 1987).
"And, even if an attorney's performance is determined to be deficient, the petitioner is not entitled to relief unless it is also established that 'there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
"In an ineffective assistance of counsel claim, the burden is on the claimant to show that his counsel's assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala. 1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).

706 So.2d at 839.

         In reviewing claims of ineffective assistance of counsel, this Court need not consider both prongs of the Strickland test. See Thomas v. State, 511 So.2d 248, 255 (Ala.Crim.App.1987)("In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs."). Because both prongs of the Strickland test must be satisfied to establish ineffective assistance of counsel, the failure to establish one of the prongs is a valid basis, in and of itself, to deny the claim. As the United States Supreme Court explained:

"Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."

Strickland, 466 U.S. at 697. With these principles in mind, we turn to Hutcherson's specific claims of ineffective assistance of trial counsel.


         Hutcherson first contends that his trial counsel was ineffective for failing to request a limiting instruction requiring the jury to use codefendant Jonathan Williams's plea colloquy as impeachment evidence only, rather than substantive evidence.

         The record indicates that trial counsel called Williams to testify that Hutcherson was not with him when he entered Paige's apartment and attacked Calhoun. During the State's cross-examination of Williams, the prosecutor introduced a copy of a transcript of Williams's plea colloquy in which he pleaded guilty to burglary in the first degree. In the plea-colloquy transcript, the prosecutor indicated that it would have presented evidence at Williams's trial that Hutcherson was with Williams and Davis at Paige's apartment at the time of the attack. (C. 213.) The remainder of Williams's guilty-plea colloquy concerned Williams's own guilt and did not reference the actions of Hutcherson or Davis. When asked at Hutcherson's trial, Williams admitted that he pleaded guilty to the crimes but testified that he "never heard Raheem Davis or Antonio Hutcherson's name" during the guilty-plea colloquy. (R. 108.) After the introduction of the transcript of Williams's plea colloquy, trial counsel did not request a limiting instruction barring the jury from using the transcript as substantive evidence of Hutcherson's guilt. Additionally, the circuit court never gave a limiting instruction on this matter.

         During the hearing on Hutcherson's motion for a new trial, Hutcherson's trial counsel admitted that her failure to request a limiting instruction on Williams's guilty-plea transcript was "an absolute failure on [her] part." (R2. 62.)

         In its order denying Hutcherson's motion for a new trial, the circuit court wrote that "the failure to request the limiting instructions indicated a deficiency in counsel[']s performance in this particular instance [;however, ] given the totality of the circumstances this deficiency in counsel['s] performance did not prejudice the defense such that the Court would find that Defendant was [d]enied a fair trial." (C. 180.)

         In support of his argument that his trial counsel was ineffective for not requesting a limiting instruction following the admission of Williams's plea-colloquy transcript at trial, Hutcherson relies on Ex parte Minor, 780 So.2d 796, 803-04 (Ala. 2000), in which the Alabama Supreme Court held that the failure to instruct a jury that it could use evidence of a defendant's prior convictions only for impeachment purposes was plain error. In reaching its holding in Minor, the Court stated that "[t]he general exclusionary rule 'protects the defendant's right to a fair trial' by seeking 'to prevent conviction based on a jury belief that [the] accused is a person of bad character. The jury's determination of guilt or innocence should be based on evidence relevant to the crime charged.'" 780 So.2d at 802 (citations omitted). That case, however, is distinguishable from the instant case because it was a capital case in which the death penalty was imposed and involved the use of the defendant's own prior convictions rather than the use of prior inconsistent statements. Furthermore, the information in Williams's plea-colloquy transcript was relevant to the crime charged in the instant case -- it stated that Hutcherson was at the scene of the crime with Williams -- and did not imply that Hutcherson was a person of bad character.

"[T]his Court has held that 'prior inconsistent statements of a witness may be used to impeach the credibility of the witness but, generally, may not be considered as substantive evidence.' Varner v. State, 497 So.2d 1135, 1137 (Ala.Crim.App.1986). Furthermore, the trial court does not have a duty, sua sponte, to inform the jury that evidence of inconsistent statements may be considered only for the purpose of impeaching a witness's credibility. Varner; Weaver v. State, 466 So.2d 1037 (Ala.Crim.App.1985). Instead, counsel must request any cautionary or limiting instructions. See Varner, supra. However, the decision not to request a limiting instruction is a matter of trial strategy and does not establish ineffective assistance of counsel. See, e.g., Jones v. State, 280 Ga. 205, 207, 625 S.E.2d 1, 3 (2005)('[t]he decision of criminal defense counsel not to request limiting instructions is presumed to be strategic')."

Sheffield v. State, 87 So.3d 607, 636 (Ala.Crim.App.2010).

         "Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengable." Ex parte Lawley, 512 So.2d 1370, 1372 (Ala. 1987).

         In the instant case, Hutcherson has not shown that he was prejudiced. Hutcherson had to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. After reviewing the record, we conclude that it is unlikely that a lack of a limiting instruction resulted in a finding of guilt. Williams's guilty-plea colloquy contained one reference to Hutcherson, and it was the prosecutor, not Williams, who alleged that Hutcherson entered the apartment with Williams. Therefore, Hutcherson is not entitled to relief on this issue.


         Hutcherson next argues that his trial counsel was ineffective for failing to use prior inconsistent statements to impeach Calhoun.

         The record indicates that Calhoun testified that he was unable to see very well during the attack and was unable to see the person who attacked him after Williams ceased his attack. Calhoun, however, was able to identify Hutcherson as his second attacker by his voice.

         Hutcherson argues that this testimony was contradicted by a police report written by Sgt. Henry McCaskill after the incident that indicated that Calhoun said "that he saw Raheem Davis and a suspect named 'Lil Dro' (Antonio Hutcherson) come into the residence." (C. 155.) The report also indicated that Calhoun said that "he heard Raheem Davis state, '[w]e got this, we need to check his pockets'" and did not indicate that Hutcherson said anything during the attack. (C. 155.)

         During the hearing on Hutcherson's motion for a new trial, trial counsel testified:

"I asked as few questions as I could and in a way in my mind to try to keep the focus on the fact that Mr. Hutcherson was not there. And I did not want any distractions from the fact that he was absolutely not there, period. I did not want any more ... additional unnecessary questions and answers that did not go to whether Mr. Hutcherson was present or not present."

(R2. 56.)

         In addressing a claim that trial counsel was ineffective for failing to effectively cross-examine a witness we have explained:

"'"[D]ecisions regarding whether and how to conduct cross-examinations and what evidence to introduce are matters of trial strategy and tactics." Rose v. State, 258 Ga.App. 232, 236, 573 S.E.2d 465, 469 (2002). "'"[D]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are ... strategic in nature."'" Hunt v. State, 940 So.2d 1041, 1065 (Ala.Crim.App.2005), quoting Rosario-Dominguez v. United States, 353 F.Supp.2d 500, 515 (S.D.N.Y.2005), quoting in turn, United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). "The decision whether to cross-examine a witness is [a] matter of trial strategy." People v. Leeper, 317 Ill.App.3d 475, 483, 740 N.E.2d 32, 39, 251 Ill.Dec. 202, 209 (2000).'"

Bush v. State, 92 So.3d 121, 155 (Ala.Crim.App.2009)(quoting A.G. v. State, 989 So.2d 1167, 1173 (Ala.Crim.App.2007)).

         In support of his argument that his trial counsel was deficient for failing to use Sgt. McCaskill's police report to impeach Calhoun, Hutcherson relies on Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989). In Nixon, Kathy Billings testified at the trial of Nixon's codefendant, Anthony Zolun, and indicated that Zolun was the man who shot her husband; she denied that she ever saw Nixon with a gun. Billings then testified at Nixon's trial and stated that Nixon was her husband's killer. After Billings denied testifying at Zolun's trial that Zolun was the killer and asserted that she "always thought that Jimmy Nixon" killed her husband, Nixon's trial counsel failed to impeach her with her prior inconsistent testimony from Zolun's trial. Id. at ...

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