unpublished memorandum should not be cited as precedent.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
Circuit Court CC-01-169.60
BECKER WINDOM Presiding Judge, SAMUEL HENRY WELCH, J.
ELIZABETH KELLUM, LILES C. BURKE, J. MICHAEL JOINER Judges.
WINDOM, PRESIDING JUDGE.
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.
direct appeal, this Court summarized the facts of
Flowers's crime and procedural history of his case as
"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
"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
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.
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.)
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.
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.
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__.
"' [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__.
Assistance of Counsel
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
"Further, the Supreme Court of the United States has
"'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
Stallworth v. State, 171 So.3d 53, 91-93
these principles in mind, this Court turns to the issues
raised on appeal and on cross-appeal.
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.
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.
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
"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,
"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
"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.
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.)
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
"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
"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
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).
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.
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
Flowers: "Yea, they got us so I mean, we're guilty
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
Coleman: "Just five of you?"
Flowers: "Yeah. Libby - Libby and Angela didn't do
Coleman: "What did you do?"
Flowers: "I was the one shot him."
Coleman: "You shot him?"
Coleman: "You the one that shot him?"
(32C. at 11897.)
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.)
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
"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
"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.)
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.
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. 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
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.
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
"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,  U.S.
, 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 ...