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State v. Flowers

Alabama Court of Criminal Appeals

December 15, 2017

State of Alabama
Timothy Flowers; Timothy Flowers
State of Alabama

         This unpublished memorandum should not be cited as precedent. See Rule 54, Ala.R.App.P. Rule 54(d), states, in part, that this memorandum "shall have no precedential value and shall not be cited in arguments or briefs and shall not be used by any court within this state, except for the purpose of establishing the application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar."

         Baldwin Circuit Court CC-01-169.60




         The State of Alabama appeals the circuit court's decision to grant Timothy Flowers penalty-phase relief in his postconviction proceeding pursuant to Rule 32, Ala. R. Crim. P., and to reduce Flowers's sentences from death to life in prison without the possibility of parole. Flowers cross-appeals the circuit court's decision denying his request for guilt-phase relief.

         On direct appeal, this Court summarized the facts of Flowers's crime and procedural history of his case as follows:

"On November 28, 2000, Ruby Welch and Brenda Owens reported to police that Tommy Philyaw was missing and that they suspected he had been the victim of a crime. They told police that Owens overheard John Morrow, Flowers's codefendant, and four other individuals talking about robbing Philyaw. Police went to Philyaw's trailer and discovered a large quantity of blood on the dirt road near his trailer and Philyaw 's hat near the blood. Philyaw's truck was missing. The investigation focused on Flowers and his codefendants John Morrow, Elizabeth Fillingim, Angela Morrow, and Kendall Packer, after several of the codefendants were interviewed by police and admitted their participation in the events that led to Philyaw's murder. The five codefendants agreed to rob Philyaw of his Christmas club money - a little over $1, 000. Their plan called for one of the females to lure Philyaw from his trailer, where the group would then rob him.
"On November 27, 2000, either Fillingim or Angela Morrow went to Philyaw's trailer and, pretending to have car trouble, asked for Philyaw's help. Philyaw followed the individual back to her car. Flowers, John Morrow, and Packer were waiting at the car, and when Philyaw arrived they began beating him with a metal pipe. They then put Philyaw in the back of his truck and drove to a secluded area. While they were driving Philyaw begged for his life and told them that he could get them more money; they continued to beat him with a pistol until they arrived at an isolated area. Flowers shot Philyaw in the back while he was lying face down in the bed of the truck. The truck was then set on fire.
"Flowers led police to the body and to the shotgun used to kill Philyaw. The shotgun belonged to Philyaw. When leading police to the body, Flowers said, 'I hope you have a strong stomach, because this is where the massacre began.'
"The victim's body was badly burned; the remains weighed 65 pounds. The forensic pathologist, Dr. Kathleen Enstice, testified that she could not conclusively state how many times Philyaw had been shot because the fire destroyed some of the evidence. She testified that Philyaw was alive when the shotgun pellets entered his chest and severed his aorta. Another pellet also entered his right shoulder. This shot was also inflicted before his death. Four pellets were recovered from the bed of the truck. Five spent shells were recovered from the scene. Enstice testified that the cause of death was multiple gunshot wounds and that it was her opinion that Philyaw was dead when his body was set on fire.
"Flowers was indicted for murdering Philyaw during the course of a kidnapping and a robbery, for murdering Philyaw while Philyaw was in a motor vehicle, for conspiring with his codefendants to kill Philyaw during a robbery, and for conspiring with his codefendants to kill Philyaw during a kidnapping. The jury convicted Flowers of two counts of capital murder-murder committed during the course of a kidnapping and murder committed during a robbery-and acquitted him of the conspiracy charges.
"A separate sentencing hearing was held before the jury. See § 13A-5-45(a), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended that Flowers be sentenced to death. A presentence report was prepared. See § 13A-5-47, Ala. Code 1975. The circuit court held a separate sentencing hearing at which it heard additional mitigating evidence. See § 13A-5-47(c), Ala. Code 1975. The circuit court found as aggravating circumstances that the murder was committed during the course of a kidnapping and a robbery and that the murder was especially heinous, atrocious, or cruel as compared to other capital offenses. See §§ 13A-5-49(4) and 13A-5-49(8), Ala. Code 1975. The circuit court found as mitigating circumstances that Flowers had no significant history of prior criminal activity, § 13A-5-5M1), that he was 18 years old at the time of the murder, § 13A-5-51(7), that he lacked a stable home life, that his mother had died when he was 16, that he lacked an education, and that he abused drugs, § 13A-5-52. After weighing the aggravating circumstances and the mitigating circumstances the circuit court sentenced Flowers to death."

Flowers v. State, 922 So.2d 938, 942-43 (Ala. Crim. App, 2005). On February 25, 2005, this Court affirmed Flowers's capital-murder convictions and sentences of death. Id. This Court issued the Certificate of Judgment on August 19, 2005.

         On August 16, 2006, Flowers filed a Rule 32 petition challenging his capital-murder convictions and sentences of death. "Flowers later filed an amended Rule 32 petition and a second amended Rule 32 petition. The State answered each of his petitions." (C. 1277.)

         On May 7, 2013, the parties deposed Flowers's lead trial counsel, William Pfeifer, Jr. "On June 10-11, 2013, August 5-6, 2013, and June 16, 2014, [the circuit court] held evidentiary hearings on Flowers'[s] second amended Rule 32 petition, at which time the parties presented evidence relating to some of the claims contained therein." (C. 1277.) After receiving post-hearing briefs from the parties, the circuit court denied Flowers's request for guilt-phase relief but granted his request for sentencing-phase relief and resentenced Flowers to life in prison without the possibility of parole.

         On June 12, 2015, the State of Alabama filed a motion to reconsider, arguing, among other things, that the circuit court erred by reducing Flowers's sentences from death to life without the possibility of parole. On June 18, 2015, Flowers filed a response to the State's motion to reconsider. (C. 1381-1390.) After the circuit court failed to rule on the State's motion to reconsider, the State filed a notice of appeal. Thereafter, Flowers filed a notice of cross-appeal. In a published opinion issued today, this Court reversed the portion of the circuit court's order resentencing Flowers to life in prison without the possibility of parole and remanded the cause to the circuit court with instructions for it to hold sentencing hearings pursuant to §§ 13A-5-46 and 13A-5-47, Ala. Code 1975. In this memorandum opinion, this Court addresses only the propriety of the circuit court's determination that counsel were not ineffective in the guilt phase and were ineffective in the penalty phase of Flowers's trial.

         Standard of Review

         "In a Rule 32 proceeding, both the burden of pleading and the burden of proof are on the petitioner." Reeves v. State, [Ms. CR-13-1504, June 10, 2016]__So. 3d__, __(Ala.Crim.App. 2016); accord Rule 32.3, Ala. R. Crim. P. ("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 general rule is that 'when the facts are undisputed [or] 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). On the other hand, '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)). Even when the disputed facts arise from a combination of oral testimony and documentary evidence, we review the circuit court's findings for an abuse of discretion and afford those findings a presumption of correctness. See Parker Towing Co. v. Triangle Aggregates, Inc., 143 So.3d 159, 166 (Ala. 2013) (noting that the ore tenus rule 'applies to "disputed issues of fact, " whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.'"

Reeves, __So. 3d at__.

         Further, "' [o]n direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence. '" Id. (quoting Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App. 2008)). "Therefore, '[t]he general rules of preservation apply to Rule 32 proceedings, ' Boyd v. State, 913 So.2d 1113, 1123 (Ala.Crim.App. 2003), and this Court 'will not review issues not listed and argued in brief. ' Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App. 1995)." Reeves, __So. 3d at__.

         Ineffective Assistance of Counsel

         The issues raised by both parties in this appeal involve claims of ineffective assistance of counsel. Regarding those types of claims, this Court has explained:

"To prevail on his claims of ineffective assistance of counsel, [Flowers] must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052');">104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must present evidence establishing the specific acts or omissions that he alleges were not the result of reasonable professional judgment on counsel's part and prove that these acts or omissions fall 'outside the wide range of professionally competent assistance.' Id. at 690. If he meets this burden, he must then show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Id. at 694. 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Id. 'The likelihood of a different result must be substantial, not just conceivable.' Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011) (citing Strickland, 466 U.S. at 693.
"Further, the Supreme Court of the United States has explained:
"'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. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). 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." See Michel v. Louisiana, [350 U.S. 91, 101 (1955)]. 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. 'Strickland specifically commands that a court "must indulge [the] strong presumption" that counsel "made all significant decisions in the exercise of reasonable professional judgment."' Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1407, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 U.S. at 689-690). Courts are 'required not simply to give the attorneys the benefit of the doubt, but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as they did.' Cullen, 563 U.S. at 196, 131 S.Ct. at 1407 (internal citations and quotations omitted).
"Further, the presumption that counsel performed effectively '"is like the 'presumption of innocence' in a criminal trial, "' and the petitioner bears the burden of disproving that presumption. Hunt v. State, 940 So.2d 1041, 1059 (Ala.Crim.App. 2005) (quoting Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir. 2000) (en banc)). 'Never does the government acquire the burden to show competence, even when some evidence to the contrary might be offered by the petitioner.' Id. ""An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of effective representation] . Therefore, 'where the record is incomplete or unclear about [counsel] 's actions, [a court] will presume that he did what he should have done, and that he exercised reasonable professional judgment.""" Hunt, 940 So.2d at 1070-71 (quoting Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir. 2001), quoting in turn Chandler, 218 F.3d at 1314 n. 15, quoting in turn Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999)). Thus, to overcome the strong presumption of effectiveness, a Rule 32 petitioner must, at his evidentiary hearing, question trial counsel regarding his or her actions and reasoning. See, e.g., Broadnax v. State, 130 So.3d 1232, 1255-56 (Ala.Crim.App. 2013) (recognizing that '[i]t is extremely difficult, if not impossible, to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record[, and holding that] circuit court correctly found that Broadnax, by failing to question his attorneys about this specific claim, failed to overcome the presumption that counsel acted reasonably'); Whitson v. State, 109 So.3d 665, 676 (Ala.Crim.App. 2012) (holding that a petitioner failed to meet his burden of overcoming the presumption that counsel were effective because the petitioner failed to question appellate counsel regarding their reasoning); Brooks v. State, 929 So.2d 491, 497 (Ala.Crim.App.2005) (holding that a petitioner failed to meet his burden of overcoming the presumption that counsel were effective because the petitioner failed to question trial counsel regarding their reasoning); McGahee v. State, 885 So.2d 191, 221-22 (Ala.Crim.App.2003) ('[C]ounsel at the Rule 32 hearing did not ask trial counsel any questions about his reasons for not calling the additional witnesses to testify. Because he has failed to present any evidence about counsel's decisions, we view trial counsel's actions as strategic decisions, which are virtually unassailable.'); Williams v. Head, 185 F.3d at 1228; Adams v. Wainwright, 709 F.2d 1443, 1445-46 (11th Cir.1983) ('[The petitioner] did not call trial counsel to testify ... [; therefore, ] there is no basis in this record for finding that counsel did not sufficiently investigate [the petitioner's] background.'); Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir. 2005) ('Because [trial counsel] passed away before the Rule 32 hearing, we have no evidence of what he did to prepare for the penalty phase of [the petitioner's] trial. In a situation like this, we will presume the attorney "did what he should have done, and that he exercised reasonable professional judgment."')."

Stallworth v. State, 171 So.3d 53, 91-93 (Ala.Crim.App. 2013).

         With these principles in mind, this Court turns to the issues raised on appeal and on cross-appeal.


         On cross-appeal, Flowers argues that the circuit court erroneously held that counsel were not constitutionally ineffective in the guilt-phase of his trial. Specifically, Flowers argues that the circuit court erroneously rejected his claim that counsel were ineffective for failing to present evidence that someone else fired the fatal shots and for failing to challenge the State's forensic evidence. According to Flowers, trial counsel should have investigated and presented evidence indicating that Philyaw was murdered without Flowers's knowledge, consent, or assistance, and outside of his presence.

         To support his argument, Flowers asserts that "[t]he State's theory of the case was that Mr. Flowers alone killed Philyaw by firing the shotgun five or six times into the bed of the pickup truck where Philyaw lay." (Flowers's brief, at 69.) He further asserts that he informed his attorneys that he fired the shotgun above the truck and did not shoot Philyaw. He then argues that:

"Because there are multiple pellets in each shotgun shell, there should have been over 100 pellets near the vehicle, had Mr. Flowers fired directly into the bed of the truck at 'contact range, ' as the state argued. But in fact, there were only four or five pellets found anywhere near the vehicle or the victim. Further, if buckshot pellets had been fired from a shotgun into the bed of the truck, there should have at least been indentation marks, if not holes, in the metal of the truck bed. But the State presented no such evidence of indentations or holes identified as having been caused by buckshot pellets hitting the truck. Moreover, a forensic scientist testifying for the State testified that when Philyaw's truck was burned, any lead pellets existing in the truck would have melted. As a result, if Mr. Flowers had in fact shot into the truck instead of over it, lead should have been found in the bed of the truck, even if the fire had melted the pellets."

(Flowers's brief, at 70-71.) Flowers asserts that "[t]he fact that there were only four or five pellets near the vehicle supports the account Mr. Flowers had told his lawyers all along: that he aimed high over the truck, avoiding Philyaw, who lay inside the bed of the truck." (Flowers's brief, at 71.) Flowers also argues that the State presented evidence that the gunshot wounds were contact wounds, but Flowers was several feet away from the truck when he fired the shotgun. Further, Flowers told his attorneys that he was not present when Philyaw's truck was set on fire and that Philyaw could have been murdered then.

         The circuit court addressed this claim as follows:

"Mr. Flowers contends that this trial counsel were ineffective for failing to challenge the Prosecution's forensic evidence by presenting evidence showing that he did not shoot the victim and that 'Buckshot or Mr. Packer killed Mr. Philyaw during a robbery and kidnapping without [his] knowledge, consent or assistance' and 'outside of his presence.' Plaintiff's Post-Hearing Brief at 106-111.
"As an initial matter, Mr. Flowers'[s] assertion that he could not have been convicted of capital murder if his counsel had created reasonable doubt as to whether he was the shooter is incorrect as a matter of law. Under Alabama law, it is of no real practical importance whether Flowers or one of his four co-defendants shot Mr. Philyaw. See, e.g. Turner v. State, 924 So.2d 737, 778 (Ala.Crim.App. 2002) (explaining that the State does not have to prove that the Defendant 'was the actual one of three codefendants who committed the murder' because pursuant to Alabama law, 'it is irrelevant whether [this defendant] or one of his co-defendants killed the victim'). Instead, Alabama law provides as follows:
"'[A]n individual who is present with the intent to aid and abet in the commission of an offense is as guilty as the principle wrongdoer. § 13A-2-20-23, Code of Alabama 1975. See Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); Robinson v. State, 335 So.2d 420 (Ala.Crim.App.1976), cert, denied, 335 So.2d 426 (Ala. 1976); Heard v. State, 351 So.2d 686 (Ala.Crim.App. 1977); Hill v. State, 348 So.2d 848 (Ala.Crim.App. 1977), cert, denied, 348 So.2d 857 (Ala. 1977). 'A conviction of one charged in the indictment with having been the actual perpetrator of a crime is authorized on proof of a conspiracy or that the accused aided and abetted in the commission of the crime. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). An aider and abettor would be indicted directly with the commission of the substantive crime and the charge may be supported by proof that he only aided and abetted in its commission. Pope v. State, 365 So.2d 369 (Ala.Crim.App. 1978).' Killough v. State, 438 So.2d 311 (Ala.Crim.App. 1982), reversed on other grounds, 438 So.2d 333 (Ala. 1983).'
"Price V. State, 725 So.2d 1003, 1055 (Ala.Crim.App. 1997). See also Apicella v. State, 809 So.2d 841, 860 (Ala.Crim.App. 2000); McWhorter v. State, 781 So.2d 257, 272 (Ala.Crim.App. 1999). Thus, under Alabama law, '[a]s long as the appellant intentionally promoted or aided in the commission of the killing itself, whether he actually committed the murder does not affect his liability or his guilt.' Price, 725 So.2d at 1055 (citing Lewis v. State, 456 So.2d 413 (Ala.Crim.App. 1984)).
"Here, this Court correctly instructed the jury on the laws of complicity and accomplice liability. Because the jury was not required to find that Mr. Flowers shot Mr. Philyaw to convict him of the capital offenses of murder committed during the course of a kidnapping and robbery, Mr. Flowers cannot establish deficient performance or prejudice with respect to this claim.
"Moreover, the record demonstrates that trial counsel had sufficient strategic reasons to refute Mr. Flowers'[s] claim that his counsel should have called him as a witness to testify that he did not shoot the victim and should have presented forensic evidence showing that he did not shoot the victim. When Mr. Pfeifer was asked why he and Ms. Dixon did not call Mr. Flowers as a witness to testify that he 'shot high and didn't think he had hit' the victim or present other evidence to show that Flowers did not shoot the victim, Mr. Pfeifer stated that they had legitimate reasons to question the effectiveness of Flowers'[s] testifying. Any such testimony offered by Mr. Flowers concerning the shots fired would have been accompanied by certain admissions that may have outweighed any positive effect produced by Mr. Flowers' [s] claims to have shot above the victim. This includes admissions that Mr. Flowers was a participant in a scheme to kidnap and rob Mr. Philyaw and that Mr. Flowers had struck Mr. Philyaw in the head with a blunt object. Also, trial counsel doubted the possible efficacy of such testimony due to several prior confessions of Mr. Flowers. The evidence in the record supports Mr. Pfeifer's testimony. See R. 69-72, 963-964, 972-973, 981.
"Due to the considerable amount of evidence tending to show that Mr. Flowers shot Mr. Philyaw, it was reasonable for his counsel to refrain from devoting a large portion of their limited time and resources pursuing the theory that Mr. Flowers did not shoot Mr. Philyaw. See, e.g., Chandler, 218 F.3d at 1318 n.22 ('Strickland's approach toward investigation "reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources."'); Foster v. Dugger, 823 F, 2d 402, 405 (11th Cir. 1987) ('Counsel need not "pursue every path until it bears fruit or until all available hope withers."'). Furthermore, Counsel's strategic decision is supported by the fact that the jury was not required to find that Flowers shot Mr. Philyaw to convict him of capital murder during the course of a robbery and kidnapping.
"Similarly, it was reasonable for trial counsel to decline to challenge the state's forensic evidence. It was undisputed that Mr. Philyaw died during the course of a crime in which Mr. Flowers was a willing participant. The state had strong evidence, including admissions of Mr. Flowers, that he had committed acts that could have caused the death of Mr. Philyaw. Deciding to challenge the state's specific theory of how Mr. Philyaw's death occurred would have demanded an enormous amount of work for results of doubtful merits.
"For the foregoing reasons, the Court finds that Mr. Flowers'[s] trial counsel were not ineffective in choosing not to present evidence showing that Mr. Flowers purposefully missed Mr. Philyaw when firing shots in his direction and challenging the state's forensic evidence. Accordingly, this claim is dismissed in accordance with Alabama Rule of Criminal Procedure 32.3 because Mr. Flowers fails to meet his burden of proving the facts necessary to entitle him to relief.

(C. 1278-81.) This circuit court's findings are supported by the record.

         First, Flowers's assertion that trial counsel failed to use the lack of shotgun pellets in the truck to raise doubt regarding the State's version of the events is refuted by the record. At trial, Flowers counsel presented evidence that, with 5 to 6 shots, over 100 pellets would have been fired. Counsel established that only 4 or 5 pellets were recovered. Counsel established that there was one hole in an air tank and no indentations or holes in the truck. Counsel further established that there was no evidence of any melted pellets. (R. 731-32.) See also (R. 1203-05) (defense counsel arguing that the lack of pellets, whole or melted, raises doubt regarding the State's theory of the crime). As the State aptly described at trial, "[t]he defense has, throughout the trial, vigorously suggested several alternatives concerning how this man may have been killed, and raised the specter, how come there wasn't more than 3 or 4 pellets found?" (R. 900.)

         During closing arguments, the State responded as follows:

"And there were some things that were raised. Where are the pellets? I don't know. Were they burned? I don't know. Could they not be found? I don't know. Were they in little pieces of organs? I don't know. I don't know.
But you got the wadding. You got the testimony. And, so, what do you think happened? This is what I think happened, what the evidence shows you and what evidence you heard."

(R. 1176.) Thereafter, defense counsel argued:

"But you heard the testimony. I don't know what it all means anymore than you do, but I know it means that there's some doubt, reasonable doubt. There were twenty-four pellets in each of those shotgun shells. One hundred twenty pellets were allegedly were fired in the back of that pickup truck. Four - four were found in Mr. Philyaw. One - there was an indication of one hitting an air tank. So, five pellets, leaving a hundred fifteen pellets that disappeared.
"Now, the state tries to minimize that. But you remember, the doctor -- the body was burned, and she pointed to that fact. But she had no problem finding the entrance wounds, and she found no exit wounds. The prosecution says the pellets were small.
"And the expert admitted that the materials in the back of that truck were carefully sifted through by a whole team of investigators, specifically looking for this type of evidence.
"Well, they didn't find it. The prosecutor tries to explain it away with another witness, saying the pellets may have melted. But the witness admitted -- the expert admitted that they could have melted, but they wouldn't have turned to ash, they would have been there in their melted state. And all suspicious metal was turned over. And the bottom line is, there were no pellets.
"The prosecution -- I believe that Hoss Mack gave testimony that sometimes these pellets are small, and they might not have been found, could have been buried in this body. But on cross-examination, that same witness admitted that if a body is X-rayed, pellets are going to be found. This body was X-rayed, and there were no more pellets. No holes in that pickup truck anywhere, nowhere, not under, not around, besides, nowhere, no remnants of pellets. They were not around the body, in the body. There's no indication, whatsoever, that those one hundred fifteen pellets were in the truck. Again, I don't know what to make it. But I do know that it gives you reason to doubt the state's scenario."

(R. 1203-05.)

         Thus, defense counsel did use the forensics - lack of shotgun pellets, lack of indentations, and lack of holes - to try to raise doubt regarding the State's theory of the crime. See (32C. 11678) (Counsel explained that he used the State's forensic evidence, lack of pellets and such, to try to show that the State's theory was incorrect). Therefore, this portion of Flowers's claim is refuted by the record and without merit. See Albarran v. State, 96 So.3d 131, 160 (Ala.Crim.App.2011) (recognizing that claims that are refuted by the record are without merit); McNabb v. State, 991 So.2d 313, 320 (Ala.Crim.App.2007) (holding that a claim that is refuted by the record is without merit and does not entitle the appellant to relief).

         To the extent Flowers argues that counsel should have done more, expended more resources, and presented other witnesses to establish the relevance of the forensic evidence, his claim is without merit. Additional evidence regarding the state of the crime scene and the implication to be drawn from it would have been cumulative to evidence and argument presented at trial. "This Court has previously refused to allow the omission of cumulative testimony to amount to ineffective assistance of counsel." United States v. Harris, 408 F.3d 186, 191 (5th Cir. 2005) (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984)). "[T]he withholding of cumulative testimony will not ordinarily satisfy the prejudice component of a claim of ineffective assistance of counsel." Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984) (citing Schrier v. State, 347 N.W.2d 657, 665 (Iowa 1984)). Further, considering the overwhelming evidence of Flowers's intent to kill Philyaw summarized below, counsel was not ineffective for failing to expend more resources on proving facts - the lack of pellets, holes, and indentation -- that the jury could easily understand from cross-examination of the State's witnesses. Thus, this Court cannot say that the circuit court abused its discretion by finding that Flowers failed to meet his burden to establish counsel's ineffectiveness.

         Likewise, Flowers failed to prove that counsel were constitutionally ineffective for failing to present his testimony or other witnesses' testimony indicating he was not the shooter and did not intend to kill Philyaw. The State presented overwhelming evidence that Flowers was the shooter and that he intended to take Philyaw's life. For instance, Flowers confessed on multiple occasions that he hit Philyaw in the head with a pipe and shot him. Ricky Tobin, an investigator with the Baldwin County Sheriff's Department, testified that, "Flowers stated they stopped on the dirt road, and at that time, he got out and shot Philyaw five or six times...." (R. 873.) Flowers "said he shot him five or six times while [Philyaw] was lying in the back of the truck." (R. 874.) Further, during a telephone conversation Flowers had with his sister, Theresa Coleman, the following occurred:

Coleman: "Yeah. Did Y'all - did y'all do it?"
Flowers: "Yea, they got us so I mean, we're guilty as charged."
Coleman: "How could you do it?"
Flowers: "I Me [sic] and Libby didn't want to do it and they - they talked me into doing it."
Coleman: "Who else was involved?"
Flowers: "Me. It's me, Black, Buckshot, Angela and Libby."
Coleman: "Just five of you?"
Flowers: "Yeah. Libby - Libby and Angela didn't do nothing really."
Coleman: "What did you do?"
Flowers: "I was the one shot him."
Coleman: "You shot him?"
Flowers: "Yeah."
Coleman: "You the one that shot him?"
Flowers: "Yep."

(32C. at 11897.)

         Additionally, Flowers led law-enforcement officers to the location of Philyaw's body and the shotgun used to murder him. On the way to the location of Philyaw's body, Flowers was excited, "laughing and joking around, " and showed no signs of remorse. (R. 849, 876.) As Flowers led law-enforcement officers to Philyaw's body, he stated, "'I hope you have a strong stomach, because this is where the massacre began [.] '" (R. 865.)

         Faced with Flowers's statements, confessions, and giddy behavior when visiting the scene of the murder, trial counsel explained the decision not to have Flowers testify and tell his version of the offense as follows:

"Q. Did you - well, as of the end of September, had there been any investigation by you or [Dixon] or anyone else into possible guilt defense issue around Mr. Flowers telling you that he thought he shot high and didn't think he had hit anyone?
"A. Well, it was - Yeah. I mean, that was --that was something to consider, but we had a problem with - for one, that Tim kept confessing to doing it, you know, all these tape recordings of him saying he did it. And even in our discussions with him, he talked about hitting [Philyaw] in the head with a pipe, I think it was.
So it wasn't as if he was -- you know, it wasn't like the girl that was cowering in the car, you know, while all this went on. He was an active participant. And without - so it's hard to - you know, so we didn't - we didn't want to put him on the stand because he's going to get up there and admit to committing capital murder even if he says he shot high. And we didn't really have anyone else to put up there that could say things that would help with that other then, you know, trying to establish through the evidence that it probably wasn't the shot that killed him.=
"Q. I think you mentioned that before, but I'll ask you again and give you an opportunity to explain. Why didn't you call Mr. Flowers to testify to say that he thought he shot high or he didn't think he hit [Philyaw] or any of those things he had told you.
"A. Well, a couple of things. One is that Tim was - you know, you're probably - [you Rule-32 counsel are] dealing with a much older and probably more matured person. We were dealing with an out-of-control teenage boy who thought he was a celebrity and a hero and was going to take the hit for everybody, and we had no idea what he would do if he got to the witness stand.
The other - the other problem was that even if he told us what he had said to us, he still would be basically admitting to capital murder because he said he hit [Philyaw] in the head with a pipe or something to that effect. You know, he may not have been the fatal blow, but it would certainly - there wouldn't be any way that his testimony would be exculpatory. It might minimize - you might be able to minimize what he did, but not clear him."

(32C. 11657-658, 11678.)

         Counsel had strategic reasons not to present Flowers's testimony. Flowers failed to meet his burden to overcome those strategic reasons. Therefore, the circuit court did not abuse its discretion by holding that counsel's performance was not deficient under Strickland.

         Finally, Flowers did not, and cannot, show that there is a reasonable probability that, had counsel presented more evidence relating to the forensics of the crime scene and/or presented Flowers's testimony, the outcome of the trial would have been different. See Harrington, 562 U.S. at 112; Strickland, 466 U.S. at 693. As discussed above, defense counsel attacked the State's theory of the case by establishing -- through the State's witnesses - that there were too few shotgun pellets in the truck, there were no holes in the truck, and there were no indentations from pellets in the truck. Presenting additional evidence to prove those readily understandable facts would not have changed the outcome of the case. Further, presenting Flowers's testimony would, as the circuit court found, have likely been harmful. The State would have impeached him with his confessions and his admission to his sister. Further, he would have had to admit that he hit Philyaw in the head with a pipe indicating that Flowers intended for Philyaw to die. Finally, there was overwhelming evidence establishing that Flowers intended to kill Philyaw.[2] See Lee v. State, 44 So.3d 1145, 1159 (Ala.Crim.App. 2009) (holding that the petitioner failed to prove prejudice under Strickland because the evidence of his guilt was overwhelming); see also Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999) ("It is firmly established that a court must consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied."); Reed v. Norris, 195 F.3d 1004, 1006 (8th Cir. 1999) ("We find it unnecessary to discuss the reasonableness of counsel's conduct because, given the overwhelming evidence of [defendant's] guilt presented at trial, we find that it would be impossible for him to demonstrate prejudice under Strickland."); United States v. Royal, 972 F.2d 643, 651 (5th Cir. 1992) ("The overwhelming evidence of Defendant's guilt further supports our conclusion that he suffered no prejudice as a result of his counsel's performance.") . Consequently, Flowers failed to prove that counsel's performance was prejudicial under Strickland.[3]


         The State appeals the circuit court's decision holding Flowers's counsel were constitutionally ineffective for their penalty-phase performance. Specifically, the State argues that the Rule 32 court abused its discretion by holding that Flowers's counsel were ineffective during the penalty phase for: a) failing to conduct an adequate mitigation investigation; b) failing to call lay witnesses; c) failing to adequately present evidence of brain damage and cognitive issues; d) mishandling their mental-health expert, Dr. John Goff, and for failing to retain a social worker and a neurologist; and e) failing to adequately present evidence indicating that Flowers would not be a danger if sentenced to life in prison without the possibility of parole. For the reasons that follow, this Court affirms the circuit court's decision holding Flowers's counsel ineffective during the penalty phase of his trial.

"When reviewing claims of ineffective assistance of counsel during the penalty phase of a capital trial we apply the following legal standards.
"'When the ineffective assistance claim relates to the sentencing phase of the trial, the standard is whether there is "a reasonable probability that, absent the errors, the sentencer - including an appellate court, to the extent it independently reweighs the evidence -would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland [v. Washington], 466 U.S. [668, ] at 695, 104 S.Ct. [2052, ] at 2069 [ (1984) ].'

Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994).

         "In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the United States Supreme Court in reviewing a claim of ineffective assistance of counsel at the penalty phase of a capital trial, stated:

"'In Strickland [v. Washington, 466 U.S. 668 (1984)], we made clear that, to establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694. In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.'
"539 U.S. at 534, 123 S.Ct. 2527.
"'The reasonableness of counsel's investigation and preparation for the penalty phase, of course, often depends critically upon the information supplied by the defendant. E.g. Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334, 340-41 (1998) (collecting cases). Counsel cannot be found ineffective for failing to introduce information uniquely within the knowledge of the defendant and his family which is not provided to counsel.'"
Waldrop v. State, 987 So.2d 1186, 1195 (Ala.Crim.App. 2007), quoting Commonwealth v. Bond, 572 Pa. 588, 609-10, 819 A.2d 33, 45-46 (2002).
"'"A defense attorney is not required to investigate all leads, however, and 'there is no per se rule that evidence of a criminal defendant's troubled childhood must always be presented as mitigating evidence in the penalty phase of a capital case.'" Bolender [v. Singletary], 16 F.3d [1547, ] 1557 [(11th Cir. 1994)] (footnote omitted) (quoting Devier v. Zant, 3 F.3d 1445, 1453 (11th Cir. 1993), cert. denied, [513] U.S. [1161], 115 S.Ct. 1125, 130 L.Ed.2d 1087 (1995)). "Indeed, '[c]ounsel has no absolute duty to present mitigating character evidence at all, and trial counsel's failure to ...

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