from Madison Circuit Court (CC-97-162.60)
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.
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.
Acklin's direct appeal, we quoted the following relevant
facts of the underlying crimes from the trial court's
"'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
"'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
"'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
Acklin v. State, 790 So.2d 975, 982-84
(Ala.Crim.App.2000) (quoting Trial C. 280-84).
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
"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
"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
"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
"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
"While some of the actions cited herein were performed
by Joey Wilson 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.)
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
"Prior to September 25, 1996, the defendant was a
quiet and polite individual who had no history of assaultive
"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
"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
"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
"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
"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.)
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.)
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.
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. Several of the Rule 32 claims were
summarily dismissed. The circuit court held an evidentiary
hearing on the remaining claims in December 2013.
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.
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,  So.3d ,
"'....As stated above, [some] of the claims raised
by [Acklin] were summarily dismissed ....
"Washington v. State, 95 So.3d 26, 38-39
"[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).
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
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
was represented at his trial by Behrouz Rahmati and Kevin
Gray. 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.
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.)
Rahmati's testimony, Acklin introduced billing statements
and "monthly billing" letters from Rahmati's
law firm. 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.)
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.
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
"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
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.
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
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.
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.)
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
"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
"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."
whether Rahmati considered putting this evidence on during
the penalty phase, Rahmati said that he did. 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 ...