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Acklin v. State

Alabama Court of Criminal Appeals

December 15, 2017

Nicholas Bernard Acklin
v.
State of Alabama

         Appeal from Madison Circuit Court (CC-97-162.60)

          JOINER, JUDGE.

         Nicholas Bernard Acklin, an inmate on death row at Holman Correctional Facility, appeals the Madison Circuit Court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. We affirm.

         On October 23, 1998, Acklin was convicted of one count of capital murder for killing Charles Lamar Hemphill, Michael A. Beaudette, Johnny Couch, and Brian Carter pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975, and two counts of attempted murder as to Ashley Rutherford and Michelle Hayden, see § 13A-6-2 and § 13A-4-2, Ala. Code 1975. The trial court sentenced Acklin to consecutive sentences of 20 years' imprisonment for his convictions for attempted murder. As to his conviction for capital murder, the jury recommended, by a vote of 10-2, that Acklin be sentenced to death; the trial court accepted that recommendation and sentenced Acklin to death.

         In Acklin's direct appeal, we quoted the following relevant facts of the underlying crimes from the trial court's sentencing order:

"'Late on the night of September 25, 1996, Nicholas Bernard Acklin and two companions, all heavily armed, entered the home of Ashley Rutherford on University Drive in Huntsville, Madison County, Alabama. Acklin, Joseph Wilson, and Corey Johnson held seven people at gunpoint in a 13' x 18' room and, for nearly two hours, assaulted, tortured, and humiliated them. Then, shortly before midnight, Acklin and Wilson fired 19 rounds of 9mm ammunition, shooting 6 of the 7 victims in or about the head. Four of the six victims died, two survived the shooting, and one victim escaped.
"'The events giving rise to these slayings occurred approximately one week before the murders took place. At this time, Joseph ("Joey") Wilson and Corey Johnson, while visiting the home of Ashley Rutherford, stole a cellular telephone and a small bag of marijuana. The theft of the cellular telephone prompted Rutherford and the owner of the phone, Lamar Hemphill, to file a police report with the Huntsville Police Department. As a result of the police report being filed, Wilson was questioned by the police regarding the theft of the phone. Once Wilson learned that a police report had been filed, he became angry. On the night of September 25, 1996, Wilson, Acklin, and Johnson went to Ashley Rutherford's home seeking revenge against those persons they deemed responsible for filing the report.
"'Early in the evening of September 25, 1996, Ashley Rutherford's fiancee (Michelle Hayden) and two of his friends (Brian Carter and Lamar Hemphill) sat in Rutherford's garage apartment watching television and awaiting Rutherford's return from work. Later, Michael Beaudette, another friend of Ashley Rutherford, arrived and joined Hayden, Carter, and Hemphill in watching television and socializing. At approximately 10:00 p.m., Mike Skirchak and Johnny Couch, while driving past Rutherford's home on University Drive, noticed Michael Beaudette's car and decided to stop and talk for awhile with Beaudette and the others. At approximately 10:05 p.m., Skirchak and Couch decided to leave. As the two young men exited Rutherford's home, they were met by Nicholas Acklin, Joey Wilson, and Corey Johnson, who forced them back inside the garage apartment.
"'Once inside the apartment, Acklin, Wilson, and Johnson began asking repeatedly, "Who filled out the warrant?" When no one would give them a satisfactory answer, they brandished handguns and began physically assaulting Skirchak, Couch, Beaudette, Carter, and Hemphill. Specifically, these five young men were kicked, slapped, punched, spat on, and beaten with a whiskey bottle by Wilson and Johnson. A few times during these assaults, Acklin took Michelle Hayden outside and made sexual advances towards her. Acklin fondled Hayden's breasts and repeatedly asked her to pull down her pants. After approximately an hour of the aforementioned behavior, Ashley Rutherford arrived home from work and he was immediately confronted by Johnson, who forced him into the apartment. Once inside, Rutherford was also interrogated about the police report. He, too, was beaten and threatened. In fact, as the night progressed, two of the three assailants, Nicholas Acklin and Joey Wilson, grew increasingly violent and more demeaning. For example, Acklin placed a .357 magnum revolver in Rutherford's mouth and shoved it into his throat until Rutherford gagged. Acklin also placed Michael Beaudette in a headlock and placed the same .357 magnum revolver under his chin. Wilson kicked and stomped Johnny Couch until he was almost unconscious and then cut his ponytail off with a pair of scissors. A short while after this incident, Acklin made Michelle Hayden accompany him outside while he stole Brian Carter's car stereo from Carter's car. When Acklin returned to the overcrowded apartment, he threw a pocket-knife at Brian Carter's feet. Then, Acklin turned to Wilson, who was holding a Ruger 9mm semi-automatic handgun and proclaimed, "Look, he has a knife!" Both Acklin and Wilson continued humiliating the victims by making them do self-degrading things, such as take off their pants and sit exposed in their underwear. At one point in the evening, Wilson placed his handgun on a dresser and dared anyone to try and grab it. Furthermore, following one of the several occasions that Acklin took Michelle Hayden outside, Acklin went back inside the apartment and told her fiance, Ashley Rutherford, that his girlfriend had just performed oral sex on him.
"'As the night progressed, all seven victims asserted that they did not know anything about a warrant being filed against Wilson. However, Rutherford and Hemphill did admit to their attackers that a police report had been filed for the stolen cellular phone, but no one had sworn out a warrant. Despite the assertions by Rutherford and Hemphill, as well as from the others, the anger of both Acklin and Wilson rose to a dangerous crescendo. Just before midnight, Acklin and Wilson made all seven victims give them their driver's licenses and identification cards. At this point, Corey Johnson tried to calm Acklin and Wilson down by telling them that the victims were not going to talk and that they didn't have to shoot anyone. Unfortunately, Acklin and Wilson ignored Johnson and began shouting for someone to go and start the car. After yelling back and forth to each other to go start the car, Acklin finally left Wilson inside and went to start Wilson's car. At this point, Wilson was holding the seven victims at gunpoint and demanding that someone tell him who filed what he claimed was a warrant against him. When Acklin returned from outside, he was holding one of the two Lorcin 9mm handguns that had been tucked in his waistband earlier that night. As Wilson continued to demand answers to his questions, Acklin proclaimed, "Fuck it, " and placed the Lorcin 9mm against the back of Ashley Rutherford's head and fired. Then, in a methodical manner, as each of the other victims sat and watched, Acklin shot Lamar Hemphill once in the head, shot Johnny Couch twice in the head, shot Michael Beaudette once in the head and once in the upper leg, and shot Michelle Hayden in the side of her face, in her arm, and in her abdomen. ... Joey Wilson shot Brian Carter six times in the neck and chest. ... Mike Skirchak ran out of the back door of the apartment without any gunshot wounds.
"'After having fired 19 rounds of ammunition inside the apartment, Acklin, Wilson, and Johnson fled. Ashley Rutherford, the first person shot by Acklin, laid in a pool of his own blood and pretended to be dead until he was sure that his attackers had left the apartment. Once he knew that they were gone, Rutherford left the garage apartment and went into the main part of the house to get help from his grandmother. After he told his grandmother to call an ambulance, Rutherford went back to assist his fiancee Hayden, who was lying in the doorway leading to the main part of the house. At approximately 12:30 a.m., Madison County emergency medical technicians arrived on the scene and determined that Michael Beaudette, Brian Carter, and Johnny Couch were already dead. Michelle Hayden was alive, but critically wounded, and Lamar Hemphill died minutes after medical technicians arrived.'"

Acklin v. State, 790 So.2d 975, 982-84 (Ala.Crim.App.2000) (quoting Trial C. 280-84[1]).

         In relevant part, the trial court found that two aggravating circumstances existed: (1) the defendant knowingly created a great risk of death to many persons and (2) the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. See § 13A-5-49, Ala. Code 1975. With regard to the second aggravating circumstance, the sentencing order states, in relevant part:

"Prior to the discharge of the two weapons, the victims were subjected to threats and intimidation. The victims were restrained at gunpoint and required to remove various portions of their clothing (primarily their pants). Joey Wilson kicked and stomped Johnny Couch until he was almost unconscious, and to further degrade and disfigure him, he cut off his pony tail with a pair of scissors.4 Throughout the evening Skirchak (the victim who escaped), Couch, Beaudette, Carter and Hemphill were repeatedly kicked, slapped, punched, spat on, and beaten with a whiskey bottle by Wilson and Johnson. After his arrival, Ashley Rutherford was also beaten and threatened.
"Several times during the night, Acklin took Michelle Hayden outside and made sexual advances toward her. Acklin fondled Hayden's breasts and repeatedly asked her to pull down her pants. After Acklin brought Michelle back inside, he told Ashley Rutherford that his girlfriend had performed oral sex on him. (She did not.)
"Acklin later placed a .357 magnum revolver in Rutherford's mouth and shoved it into his throat until Rutherford gagged. Acklin also placed Michael Beaudette in a headlock and placed the same .357 magnum revolver under his chin.
"The perpetrators also stole various items from the victims. They took the victims' driver's licenses (Beaudette's driver's license was recovered in the pair of pants that Acklin was wearing when they were seized by law enforcement). On one occasion Acklin made Michelle Hayden accompany him outside, while he stole Brian Carter's car stereo from Carter's car.
"This was an execution-style slaying. Acklin and Wilson killed or attempted to kill all of the victims in order to avoid later identification. In Bush v. State, 431 So.2d 555, 560-561 (Ala. Cr. App. 1982), aff'd 431 So.2d 563');">431 So.2d 563 [(Ala. 1983)], cert. denied, 464 U.S. 865 (1983), the Court of Criminal Appeals stated: 'Execution-type slayings evincing a cold, calculated design to kill, fall into the category of heinous, atrocious or cruel'
"In Lawhorn v. State, 581 So.2d 1159, 1175 n.7 (Ala.Crim.App.1990), aff'd, 581 So.2d 1179 (Ala. 1991), the Court ruled that 'Evidence as to the fear experienced by the victim before death is a significant factor in determining the existence of [the] aggravating circumstance[] that the murder was heinous, atrocious, and cruel.' It is almost impossible to contemplate the fear and indeed the stark terror experienced by all of these victims on the night of September 25, 1996. After being repeatedly threatened, taunted, beaten and (in Hayden's case) sexually assaulted, Acklin and Wilson began shouting for someone to go and start the car. It was at this point that the four deceased victims certainly realized what was about to happen. Certainly, everyone there knew that they were about to die. Finally, each of the victims watched their friends being methodically shot before it was their time to die.
"The actions of the defendant were conscienceless and pitiless. This was not just a murder, it was a massacre in which the defendant engaged in a bloody orgy of death and destruction. By any standard acceptable to civilized society, this crime was extremely wicked and shockingly evil. While the Court recognizes that all capital offenses are heinous, atrocious and cruel to some extent, the degree of heinousness, atrociousness and cruelty which characterizes this offense exceeds that which is common to all capital offenses.
"While some of the actions cited herein were performed by Joey Wilson[2] and Corey Johnson, the defendant is equally liable for the conduct of Johnson and Wilson due to complicity. Alabama Code [1975, ] § 13A-2-23. Within that statute, the terms 'aid and abet comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary.' Turner v. State, 674 So.2d 1371, 1376 (Ala. Cr. App. 1995). The Court therefore finds that the defendant was equally responsible for the beatings, tauntings and other abuse heaped upon the victims by Wilson and Johnson."

(Trial C. 288-90.)

         The trial court found that one statutory mitigating circumstance existed: Acklin had no significant history of prior criminal activity. See § 13A-5-51, Ala. Code 1975. As to nonstatutory mitigating circumstances, the trial court stated, in relevant part:

"The defendant proffered a number of witnesses during the second and third stage sentencing hearings. Among those to testify were his mother, father, grandmother, and several other individuals who had known Acklin during his youth.
"The following nonstatutory mitigating circumstances were either asserted by the defense or were gleaned by the Court from the testimony proffered by the defendant and the pre-sentence report.
"Prior to September 25, 1996, the defendant was a quiet and polite individual who had no history of assaultive behavior.
"All the evidence indicates that, during his formative years, Acklin was a quiet, polite and non-violent young man. The Court finds this mitigating circumstance has been proven and will be given appropriate weight.
"The defendant has a common-law wife and two children.
"While never formally married, the defendant has fathered two children .... [One of those children and her mother, Candice Wilson, ] were living with the defendant at the time of his arrest. Counsel for the defendant contends that Nicholas Acklin and Candice Wilson are married at 'common-law.' This Court finds that this mitigating circumstance has been proven and will give it appropriate weight.
"The defendant attended church and participated in church activities when he was younger.
"Several witnesses testified that Acklin had participated in church activities when he was younger. The Court finds that this mitigating circumstance has been proven and will give it appropriate weight.
"The defendant was raised in a good home by loving parents.
"The Court was impressed with the sincerity of the testimony by the defendant's mother and father. They are clearly good people and tried to do the right thing in raising him. However, the Court does not find this to be a mitigating circumstance. Most killers are typically the products of poverty, a dysfunctional family, physical or sexual abuse and/or social deprivation. Acklin was the product of a loving middle-class family. Acklin was exposed to all of the values that are central to an ordered society; however, he chose to reject them. Acklin made a conscious choice to become a killer; he was not born to it.
"The defendant's father says that he is remorseful.
"The defendant's father testified that Acklin was remorseful. While the Court finds that the testimony on this point by the defendant's father is not contradicted, the Court is not convinced that the defendant is remorseful. The defendant did not apologize to the victims' families, either in the second stage or third stage sentencing hearing. He never uttered a word of remorse. Acklin even had a half-smile or smirk on his face when the Court was sentencing him to death. The defendant glared at each of the witnesses with a gaze that was devoid of emotion. The defendant is clearly not remorseful. The Court finds that this statutory mitigating circumstance is not applicable."

(Trial C. 292-94.)

         In weighing the aggravating and mitigating circumstances, the trial court stated:

"In summary, this Court has found that two aggravating circumstances were established by the evidence beyond a reasonable doubt. The Court has also considered the advisory verdict of the jury recommending death. Those have been compared to and weighed against one statutory mitigating circumstance and several nonstatutory mitigating circumstances. After careful and deliberate consideration, this Court is convinced beyond a reasonable doubt that the two aggravating circumstances substantially outweigh the one statutory and several nonstatutory mitigating circumstances. While the Court is not required by law to make this second analysis, the Court nevertheless finds that each of the two aggravating circumstances, even standing alone, outweigh all the mitigating circumstances.
"The savage brutality of these murders is shocking. As was stated supra, the defendant's actions led to a massacre. The United States Supreme Court has recognized that 'certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.' Gregg v. Georgia, 428 U.S. 153, 184 (1976). This is such a crime.
"Robert Oppenheimer is considered by most historians and scientists to be the 'father' of the atomic bomb. When the atomic bomb was first tested in New Mexico in 1945, Oppenheimer was awestruck at the bomb's destructive power. In considering the destruction that the atomic bomb would soon bring to Japan, Oppenheimer paraphrased an ancient Hindu religious scholar and said, 'I fear I am become death, the destroyer of worlds.'
"In this case, Nicholas Acklin chose to 'become death, the destroyer of worlds.' He destroyed the world of three young men and their families by his own hand and destroyed the world of one other young man through the hands of his accomplice. He also tried mightily to destroy the world of another young man and a young lady. Because he has chosen to 'become death' and destroy so many worlds, it is to death he shall return."

(Trial C. 294-96.)

         On appeal, this Court affirmed Acklin's convictions and sentences, including his death sentence. Acklin v. State, 790 So.2d 975 (Ala.Crim.App.2000). The Alabama Supreme Court denied Acklin's petition for a writ of certiorari, Ex parte Acklin 790 So.2d 1012 (Ala. 2001), as did the United States Supreme Court, 533 U.S. 936 (2001). The certificate of judgment, making Acklin's direct appeal final, was issued on January 12, 2001.

         On June 18, 2002, Acklin filed the underlying Rule 32 petition. Over the next 11 years, Acklin filed three amended petitions and, among other things, numerous requests for discovery. The matter was assigned to several circuit judges over the years.[3] Several of the Rule 32 claims were summarily dismissed. The circuit court held an evidentiary hearing on the remaining claims in December 2013.

         On April 8, 2015, in a detailed 45-page order, the circuit court denied the Rule 32 petition. Acklin appealed to this Court. See Rule 32.10, Ala. R. Crim. P.

         Standard of Review

         "'[Acklin] has the burden of pleading and proving his claims. As Rule 32.3, Ala. R. Crim. P., provides:

"'"The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence."
"'"The standard of review this Court uses in evaluating the rulings made by the trial court [in a postconviction proceeding] is whether the trial court abused its discretion." Hunt v. State, 940 So.2d 1041, 1049 (Ala.Crim.App.2005). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, [our] review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). "[W]e may affirm a circuit court's ruling on a postconviction petition if it is correct for any reason." Smith v. State, [122] So.3d [224], [227] (Ala.Crim.App.2011).
"'....As stated above, [some] of the claims raised by [Acklin] were summarily dismissed ....
"'....'
"Washington v. State, 95 So.3d 26, 38-39 (Ala.Crim.App.2012).
"[Acklin's] remaining claims were denied by the circuit court after [Acklin] was afforded the opportunity to prove those claims at an evidentiary hearing. See Rule 32.9(a), Ala. R. Crim. P.
"When the circuit court conducts an evidentiary hearing, '[t]he 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 relief.' '[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)).
"Finally, '[a]lthough on direct appeal we reviewed [Acklin's] capital-murder conviction for plain error, the plain-error standard of review does not apply when an appellate court is reviewing the denial of a postconviction petition attacking a death sentence.' James v. State, 61 So.3d 357, 362 (Ala.Crim.App.2010) (citing Ex parte Dobyne, 805 So.2d 763 (Ala. 2001)). With these principles in mind, we review the claims raised by [Acklin] on appeal."

Marshall v. State, 182 So.3d 573, 580-82 (Ala.Crim.App.2014) (some citations omitted).

         Discussion

         On appeal, Acklin raises four issues--each of which relates solely to claims presented at the December 2013 evidentiary hearing. Acklin does not address any claims that were summarily dismissed, nor does he raise all the claims that were designated for the evidentiary hearing. Accordingly, we address only those issues Acklin raises on appeal.[4]

         I.

         Acklin's primary claim is that his trial counsel were ineffective due to an alleged financial conflict of interest. (Acklin's brief, p. 13.) To examine this claim, a brief background is necessary.

         Acklin was represented at his trial by Behrouz Rahmati and Kevin Gray.[5] The evidence at the Rule 32 hearing indicated that Rahmati agreed to represent Acklin after he met with Acklin's mother, Velma Acklin Evans ("Velma"), and Acklin's father, Theodis Acklin ("Theodis"), in September 1996, a few days after the offenses occurred. Velma signed an agreement with Rahmati providing for a $25, 000 retainer and an hourly rate of $150 per hour. At that time, Rahmati and Gray were not partners, but Gray eventually began assisting Rahmati on the case.

         At the time Rahmati was retained, he knew that Velma and Theodis were divorced. Regarding his $25, 000 retainer and Velma's ability to pay him, Rahmati testified that it was "obvious from Day 1" that Velma was in "financial distress" and Rahmati "suspected strongly [that he and Gray] were never going to get paid." (R. 56.)

         During Rahmati's testimony, Acklin introduced billing statements and "monthly billing" letters from Rahmati's law firm.[6] That evidence, along with Rahmati's testimony, indicated that Velma paid several monthly payments of around $100 toward the retainer, for a total of about $1, 900. Regarding these monthly payments, Rahmati testified that in his experience, when a parent of a client makes monthly payments of $100 to $200, "that's a very strong signal they can't afford paying." (R. 56.)

         The evidence also indicated that by the time of Acklin's October 1998 trial, Theodis had made three sporadic payments totaling $2, 900. (R. 80.) Those three payments of $700, $2, 000, and $200 occurred in March 1998, September 1998, and October 1998, respectively. Rahmati testified that he did not know what convinced Theodis to pay toward the retainer, but he said that based on his interactions with Theodis, Velma, and Acklin, he did not think Theodis was "really trying as hard" as Velma to help with Acklin's case.

         The record indicates that, based on billing statements, trial counsel spent more than 400 hours preparing for Acklin's trial. On June 1, 1998, Rahmati submitted a letter to the trial judge, along with an affidavit indicating that Acklin was indigent, in which Rahmati sought to be appointed as counsel. A few days later, Rahmati withdrew the request, in part because Gray, who had not been practicing law for five years, could not have been appointed to assist with Acklin's defense. Rahmati testified that, at the time, Alabama law imposed a statutory cap on the amount of money an appointed attorney could be paid in a capital case. Rahmati also testified:

"A. I consciously decided to withdraw my request for appointment for various reasons.
"Q. But on that June 1st, 1998 request to be appointed, you weren't seeking to have all counsel removed entirely, new counsel to be appointed to Mr. Acklin, right?
"A. No. It would have been a situation of me staying in as counsel and asking the Court to appoint a co-counsel of my choosing. Thank God, Judge Smith was kind enough, if I recall--if I recall, I think he would have appointed whoever I asked to be appointed. But then I withdrew my request to be appointed because, truly, I would have rather have Kevin Gray to stay as my co-counsel because of--I just knew how much he was putting into the case.
"And furthermore, [Acklin] himself specifically requested that Kevin and I stay in the case, and I want to say perhaps his mom did as well, but I can't remember. I can't remember about his father. You have to understand, sir, at that point it wasn't necessarily about the money anymore."

(R. 72.)

         In preparing for Acklin's trial, both Rahmati and Gray testified that they felt relatively certain they would need to be prepared for a penalty phase, and they began preparing for that phase in advance of the trial. Trial counsel were in consistent contact with Acklin and his family, and they interviewed several potential character witnesses, many of whom testified during the penalty phase.

         The record indicates that trial counsel knew Acklin allegedly had used alcohol and marijuana at the time of the crimes. Counsel consulted experts about the possible effects those substances could have had on Acklin, particularly because he was a diabetic. Counsel also examined a report of a forensic psychological evaluation performed on Acklin. Ultimately, however, counsel determined that, in their opinion, none of the information from the experts or the evaluation would have been beneficial to Acklin in either the guilt phase or the penalty phase.

         Counsel also testified that they asked Acklin and his parents about Acklin's childhood but that they were not told anything remarkable or out of the ordinary. On October 17, 1998--two days before Acklin's trial was to begin--Velma met alone with Rahmati, however, and told Rahmati that Theodis had perpetrated severe abuse against her and their children, including Acklin. This abuse, according to Velma's testimony at the evidentiary hearing, became very intense when Velma told Theodis she had had an affair. In 1982, within a year of the disclosure of the affair, Velma and Theodis were divorced, and Theodis was given full custody of the couple's three sons.[7]

         At the evidentiary hearing, Velma and her son Steve Acklin testified about the abuse. The abuse included multiple allegations of Theodis threatening Velma and the children with a gun. Velma testified that Theodis "would have a gun in his hand, and he would be shaking it, and he would just shove it down [her] mouth." (R. 219.) Acklin and his brothers "would be screaming, telling their dad not to hurt their mom." (R. 220.) Velma also testified that she once fell from a second-floor window during a fight with Theodis over a rifle, which resulted in her being hospitalized. (R. 225-29.)

         Rahmati testified that, when he first learned of the abuse two days before Acklin's trial, he "was very surprised that they never disclosed those details to us, even though we had discussed, with the whole family that we could talk to, with the exception of the brothers [who, Rahmati thought, were incarcerated]." Once he learned of the abuse, Rahmati talked to Theodis. Rahmati testified:

"Q. What did you say to [Theodis] after Velma told you about the abuse?
"A. I told [Theodis] that I had learned about the--or that [Velma] had told us about the physical and the mental abuse, more or less at his hands to paraphrase, that he had put [Acklin] through and [Velma] through and the brothers through. And obviously, at that point, you know, I had a different opinion and vision of [Theodis].
"....
"... [And] I asked him if he would consider testifying regarding that so we could at least--you know, first I wanted to see if he was willing to talk to me about it to see if, in fact, it was true, (one); (two), if it was true, what his reasons were as to why he may have been like this towards his kids or towards his wife.
"Q. Right. Then if he had told you that information, would you have then talked to him about possibly getting on the stand at the trial and relating this?
"A. Sure. Yes, that's what I did, and he wasn't happy about that idea.
"Q. What do you mean, 'He wasn't happy'?
"A. He wasn't happy. He didn't appreciate the idea that his ex-spouse, [Velma], had disclosed these facts to me. I can't remember what he specifically said. It was as if, 'It's all not true.' I told him, 'Look, this is critical. You can help your son possibly, possibly. We've got a stacked deck against us as it is.'
"In my opinion, if the father truly--even if the father was abusive, if he truly loved his son, he would appear in court, if needed, to help. He took a very aggressive posture with me.
"Q. What does that mean?
"A. He wasn't happy. As I recall, we were in [the] office, and I can't remember if [Velma] was there or not. He literally got up as he started hearing what I was saying about what [Velma] had said. He literally stood up, and he was like, 'I can't believe they are doing this, ' or 'They are going there, ' something to that effect. Visibly, he was angry, and he said, 'You tell [Acklin] if he wants to go down this road, I'm done with him, ' to that extent.
"Q. 'I'm done with him'?
"A. More or less. If I recall, that was the verbiage he used. He got up and walked out of my office. And if I recall, as he was walking out, I told him, '[Theodis], I will do whatever I need to, to get you to this sentencing phase; I just want you to know that, ' and I don't think he even said anything. I was talking to the back of his head as he was walking out. He left, and that was it."

(R. 110-12.)

         As to whether Rahmati considered putting this evidence on during the penalty phase, Rahmati said that he did.[8] Rahmati testified that he believed that the allegations were true and that, when he went to talk to Acklin the next day, Acklin confirmed that they were true. Rahmati's testimony on his interaction with Acklin was as follows:

"Q. You said ... that you got confirmation from Nick Acklin about what Velma ...

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