from Tuscaloosa Circuit Court (CC-15-1134)
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
record indicates the following pertinent facts. 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.
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.)
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
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.
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."
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.)
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.)
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.
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.
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
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).
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
"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.
"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
"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.
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.
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.
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.
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."
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.)
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
choices made after a thorough investigation of relevant law
and facts are virtually unchallengable." Ex parte
Lawley, 512 So.2d 1370, 1372 (Ala. 1987).
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.
next argues that his trial counsel was ineffective for
failing to use prior inconsistent statements to impeach
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.
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.)
the hearing on Hutcherson's motion for a new trial, trial
"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
addressing a claim that trial counsel was ineffective for
failing to effectively cross-examine a witness we have
"'"[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
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)).
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 ...