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George v. State

Alabama Court of Criminal Appeals

January 11, 2019

Larry Donald George
v.
State of Alabama

          Appeal from Talladega Circuit Court (CC-94-203.60 and CC-94-204.60)

          KELLUM, JUDGE.

         The appellant, Larry Donald George, appeals the circuit court's partial summary dismissal and partial denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his capital-murder convictions and sentences of death.

         Facts and Procedural History

         In 1994, George was convicted of two counts of murder made capital because two people were killed as the result of one course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975, and because the murders occurred during the course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975. George was also convicted of attempted murder, see § 13A-4-2 and § 13A-6-2, Ala. Code 1975. By a vote of 10-2, the jury recommended that George be sentenced to death; the trial court accepted the jury's recommendation and sentenced George to death on the capital-murder convictions. The trial court also sentenced George to life imprisonment on the attempted-murder conviction. This Court affirmed George's convictions but remanded the case with instructions that the trial court hold a new penalty-phase hearing and reevaluate its imposition of the death penalty. George v. State, 717 So.2d 827 (Ala.Crim.App.1996). On certiorari review, the Alabama Supreme Court reversed this Court's judgment and remanded the case with instructions that the death penalty be reinstated. George v. State, 717 So.2d 844 (Ala.Crim.App.1996). On remand from the Alabama Supreme Court, this Court addressed George's remaining penalty-phase issues on appeal and affirmed George's death sentences. George v. State, 717 So.2d 849 (Ala. 1997). The Alabama Supreme Court subsequently affirmed this Court's decision. Ex parte George, 717 So.2d 858 (Ala. 1998). The United States Supreme Court denied certiorari review. George v. Alabama, 525 U.S. 1024 (1998).

         In our opinion affirming George's convictions, we set out the facts of the crime as follows:

"[O]n the evening of February 12, 1988, the appellant shot his wife Geraldine George. The injuries she sustained as a result of the shooting rendered her a paraplegic. He also shot and killed Janice Morris and her boyfriend, Ralph Swain. Dr. Joseph Embry, a medical examiner for the State of Alabama, testified that Morris died as a result of a gunshot wound to the left side of his head. The lower half of the appellant's wife's body was paralyzed as a result of the damage caused by a bullet that entered her arm and passed through the mid-portion of her body.
"Geraldine George testified that on the evening of February 12, 1988, she finished her shift at the Wal-Mart discount department store and went to her apartment complex. George had left her two children with her neighbor, Janice Morris, so she went to Morris's apartment to pick up her children. As she was leaving the apartment she saw the appellant talking to her son. The appellant approached her and pulled a pistol from his jacket pocket. She ran into Morris's apartment, yelling for Morris to telephone the police. She heard gunshots, turned, and saw the appellant pointing a gun at her before he fired. Janice Morris was shot while she was at the telephone, and Ralph Swain was shot as he ran up the stairs to the second floor.
"Andrew Watkins was visiting a friend at the apartment complex on the night of the shootings. He testified that he heard gunshots and that he watched the appellant leave an apartment and drive away in his automobile. Watkins followed the appellant's automobile and wrote down his license tag number. He then went to police Captain Willard Hurst's house, where he reported the incident. The appellant was apprehended in Delaware six years after the murders as a result of an episode of the television show America's Most Wanted on which the case was featured."

George, 717 So.2d at 831.[1]

         On November 19, 1999, George timely filed the instant Rule 32 petition, raising several claims, including claims of ineffective assistance of trial counsel.[2] On February 4, 2000, the State filed an answer and on February 7, 2000, a motion to summarily dismiss those claims in George's petition the State believed were subject to the procedural bars in Rule 32.2(a), Ala. R. Crim. P., and were insufficiently pleaded under Rule 32.6(b), Ala. R. Crim. P. On July 7, 2005, George filed an amended petition in which he reasserted the claims raised in his original petition. On October 20, 2005, the State filed an answer and a motion to summarily dismiss those claims in George's petition the State believed were subject to the procedural bars in Rule 32.2(a), insufficiently pleaded under Rule 32.6(b), and presented no material issue of fact or law. On February 2, 2006, the circuit court granted the State's motions and summarily dismissed several of the claims in George's petition.

         Following several continuances at the request of both parties, the circuit court set a hearing for July 25, 2011, to consider George's Rule 32 claims that had survived summary dismissal. On July 5, 2011, George moved to amend his amended petition to clarify existing claims that had not been dismissed. On July 25 and 26, 2011, the circuit court conducted an evidentiary hearing on George's remaining Rule 32 claims. The parties then submitted the deposition testimony of Dr. Glen King, testifying on behalf of the State, and Dr. Bryan Hudson, testifying in rebuttal on behalf of George.

         On October 23, 2015, the circuit court issued an order denying George's claims. On November 20, 2015, George filed a postjudgment motion to reconsider the circuit court's judgment; the court denied the motion by written order on November 30, 2015.

         Standard of Review

         "On 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." Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008). See also Mashburn v. State, 148 So.3d 1094, 1104 (Ala.Crim.App.2013).

"'The 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.'"

Wilkerson v. State, 70 So.3d 442, 451 (Ala.Crim.App.2011).

         "[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). Also, "where a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, ... it is the duty of the appellate court to judge the evidence de novo." Ex parte Horn, 718 So.2d 694, 705 (Ala. 1998). Likewise, when a trial court makes its judgment "based on the cold trial record," the appellate court must review the evidence de novo. Ex parte Hinton, 172 So.3d 348, 352 (Ala. 2012).

         "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)). "When conflicting evidence is presented ... a presumption of correctness is applied to the court's factual determinations." State v. Hamlet, 913 So.2d 493, 497 (Ala.Crim.App.2005). This is true "whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence." Parker Towing Co. v. Triangle Aggregates, Inc., 143 So.3d 159, 166 (Ala. 2013) (citations omitted). "The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. This Court cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses." Hope v. State, 521 So.2d 1383, 1387 (Ala.Crim.App.1988). Indeed, it is well settled that, in order to be entitled to relief, a postconviction "petitioner must convince the trial judge of the truth of his allegation and the judge must 'believe' the testimony." Summers v. State, 366 So.2d 336, 343 (Ala.Crim.App.1978). See also Seibert v. State, 343 So.2d 788, 790 (Ala. 1977).

         Analysis

         On appeal, George reasserts several claims of ineffective assistance of counsel raised in his Rule 32 petition. Specifically, George contends that his counsel was ineffective for failing to prepare and present a mental-health defense at the guilt phase of trial, failing to adequately prepare and present mitigation evidence at the penalty phase of trial, and failing to remove a biased juror.[3]

"'In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
"'"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."
"'466 U.S. at 687, 104 S.Ct. at 2064.
"'"The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under 'prevailing professional norms,' was 'reasonable considering all the circumstances.'" Daniels v. State, 650 So.2d 544, 552 (Ala. Cr. App. 1994), cert. denied, [514 U.S. 1024, 115 S.Ct. 1375, 131 L.Ed.2d 230 (1995)], quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. "A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
"'The claimant alleging ineffective assistance of counsel has the burden of showing that counsel's assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala. 1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). "Once a petitioner has identified the specific acts or omissions that he alleges were not the result of reasonable professional judgment on counsel's part, the court must determine whether those acts or omissions fall 'outside the wide range of professionally competent assistance.' [Strickland, ] 466 U.S. at 690, 104 S.Ct. at 2066." Daniels, 650 So.2d at 552. When reviewing a claim of ineffective assistance of counsel, this court indulges a strong presumption that counsel's conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala. Cr. App. 1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); Luke v. State, 484 So.2d 531 (Ala. Cr. App. 1985). "This court must avoid using 'hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance." Hallford, 629 So.2d at 9. See also, e.g., Cartwright v. State, 645 So.2d 326 (Ala. Cr. App. 1994).
"'"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."
"'Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala. 1987).
"'"Even if an attorney's performance is determined to be deficient, the petitioner is not entitled to relief unless he establishes that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Strickland, ] 466 U.S. at 694, 104 S.Ct. at 2068."
"'Daniels, 650 So.2d at 552.
"'"When a defendant challenges a death sentence such as the one at issue in this case, the question 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, 466 U.S. at 697, 104 S.Ct. at 2069, quoted in Thompson v. State, 615 So.2d 129, 132 (Ala. Cr. App. 1992), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993).
"'....'
"Bui v. State, 717 So.2d 6, 12-13 (Ala. Cr. App. 1997), cert. denied, 717 So.2d 6 (Ala. 1998)."

Dobyne v. State, 805 So.2d 733, 742-44 (Ala.Crim.App.2000), aff'd, 805 So.2d 763 (Ala. 2001). "[I]n reviewing claims of ineffective assistance of counsel, this Court need not consider both prongs of the Strickland test." Clark v. State, 196 So.3d 285, 303 (Ala.Crim.App.2015). "Because both prongs of the Strickland test must be satisfied to establish ineffective assistance of counsel, the failure to establish one of the prongs is a valid basis, in and of itself, to deny the claim." Id.

         With these principles in mind, we address each of George's claims in turn.

         I.

         George first contends that his trial counsel was ineffective for failing to prepare and present a mental-health defense at the guilt phase of trial.

         The record on direct appeal reflects that George's trial counsel filed a motion for a psychological evaluation and a motion for a psychiatric examination in September 1994. On September 30, 1994, Gary Garner, a therapist at the Cheaha Mental Health Center, conducted a mental-status evaluation of George. In a letter to the trial court, Garner noted that George was "capable of understanding right from wrong at present" and assisting his attorney but that George "reported experiencing possible psychotic symptoms in the past and present that would warrant further psychological evaluation through Taylor Hardin Secure Medical Facility." (C. 1315.) The trial court subsequently ordered a mental examination of George that was completed by Dr. Kathy Ronan, a psychologist employed at the Taylor Hardin Secure Medical Facility in Tuscaloosa. Dr. Ronan summarized her findings in a forensic-evaluation report that was submitted to the trial court and to the parties. In the report, Dr. Ronan stated:

"To summarize, Mr. George is an individual who presents no signs or symptoms of a major psychiatric disorder such as Schizophrenia or Major Depression, but at the present time he does appear to have an Adjustment Disorder with some Depression and perhaps Anxiety, although depressed feelings are primary. Additionally, there is evidence of a Personality Disorder with dependent, avoidant, passive-aggressive, paranoid, and perhaps schizotypal features. Such an individual would have a longstanding history of maladjustment, particularly when dealing with interpersonal issues, with adaptive mistrust and suspiciousness of others, and periodic episodes of deterioration into more maladaptive thought processes or perceptual disturbances. Mr. George is an intelligent individual and his conversation suggests that his intelligence level may be higher than measured during current IQ testing, suggesting that to some degree emotional resources are at present being channeled to continue adequate stability and appropriate functioning overall, reducing cognitive functioning mildly."

(Supp. R., C. 1191.) With regard to George's mental state at the time of the alleged offense, Dr. Ronan concluded:

"I found no evidence that Mr. George has ever suffered from a major psychiatric disorder which would render him to be out of touch with reality or unable to understand right from wrong. He does report that during the time of the alleged offense he heard voices telling him to shoot the victims. However, the presentation of such, if he indeed did experience these, is not consistent with a major mental illness. Mr. George does have a personality disorder which at times of severe stress and disintegration may possibly result in some perceptual disturbances[;] however, there is no evidence that he was in a psychotic state or unable to understand right from wrong during the time in question. It is possible that Mr. George is simply reporting these voices in an attempt to escape legal ramifications. However, some other subtle factors suggest that there is a possibility that his representation may be true. Nevertheless, I do not find that he was experiencing major mental illness during the time in question, nor would the reported symptoms have impaired his understanding of right from wrong."

(Supp. R., C. 1193.)

         At trial, trial counsel called Dr. Ronan as a witness to testify during the penalty phase. Dr. Ronan testified that she administered intelligence and personality testing on George during the evaluation. Dr. Ronan testified that George was "unstable," however, "[n]ot in the sense of having a major psychiatric illness, but he would be an emotionally unstable person." (Record on Direct Appeal, R. 574.)

         A.

         In challenging the failure of trial counsel to prepare and present a mental-health defense, George first contends that his trial counsel did not adequately investigate George's behavior in the weeks leading up to the murders. George contends that trial counsel conducted "minimal and delayed investigation" and ignored "information detailing aspects of Mr. George's situation that would warrant investigation into a mental health defense, such as odd behaviors and escalating conflict with his wife." (George's brief, pp. 54-55.) The circuit court found that counsel's investigation was reasonable.

         At the Rule 32 hearing, George presented the testimony of his nephew, his half-sister, his childhood friends, and a friend who served with him in the Army Reserves. Byron Jackson, a close friend of George, described George as "an everyday guy" up until the murders. (R. 176.) Jackson testified that he never saw George act aggressively toward anyone. Jackson saw George on the day of the murders. According to Jackson, George appeared to be worried, "like he had something on his mind," but looked like he always did in appearance. (R. 180.) Jackson was interviewed by George's trial counsel but was not called to testify at trial. Mary Alice Thomas, a childhood friend of George's, testified that she knew George as a child and described George as "an average, normal child trying to make it from day to day." (R. 185.) Qurientan Payne is George's nephew. Payne testified that he saw George approximately one week before the murders and that George was "just a plain normal guy." (R. 190.) Payne saw George again the day before the murders and stated that George was not acting strange. Eddie Jones was George's neighbor growing up. Jones testified that he observed violence in George's house when George's parents fought but that that was not unusual. According to Jones, George was beaten; however, George stated that they all "got beat" back then. (R. 195.) Jones described George as a "normal kid" who "used to get in trouble and fight ... but he wasn't no bad person." (R. 196.) Jones testified that George was more aggressive when he returned from the Army. Jones saw George the day before the murders and noted that George was upset that he could not see his children because his wife would not let him. Rufus Thomas knew George as a child, and George lived with Thomas for a short period. Thomas visited with George two weeks before the murders and noted that George seemed "fine" at that time. (R. 205.) Alfred McCray served with George in the Army Reserves and testified that George "acted quite normal" while they served together. (R. 209.) McCray did not see George exhibit aggressive behavior. George's younger half-sister, Ellen Jones, testified that she and George grew up in a large family with both of their parents.[4] Ellen and George had six siblings. According to Ellen, she, George, and Zelda were the youngest of the siblings; her other siblings were 11 to 16 years older than her. Ellen testified that George was three or four years older than her. Ellen testified that the older siblings moved out of the house at some point and that she was too young to remember when all the family lived together in the same house. Ellen testified that her parents were normal and that they had occasional disagreements, particularly when her father would drink alcohol on the weekends. Ellen testified that her father never got "physical" with the children. (R. 219.) Ellen stated that George was a "normal" child who was an excellent student and played football. As a child, George built a tree house where he spent a lot of his time. Ellen saw George when he visited her at her house the week before the murders. According to Ellen, George appeared "normal" during the visit. (R. 232.)

         George also presented the testimony of his trial attorneys, Jeb Fannin[5] and Steve Giddens. Fannin was appointed as second chair on George's case approximately six weeks before trial. Fannin testified that he met with George before trial. Fannin described George as "very calm," "polite," and

         "very cordial." (R. 120.) Fannin testified that George was talkative and answered all questions asked. According to Fannin, George did not report hearing voices while he was incarcerated before trial. Fannin spoke with some of George's family members before trial but could not remember the names of those he spoke to in preparation for trial. Fannin testified that he visited the crime scene and spoke to witnesses and neighbors. According to Fannin, George's wife refused to talk to him before trial. Based on Dr. Ronan's report and his interactions with George, Fannin did not believe that insanity was a viable defense in George's case.

         Steven Giddens was the lead attorney on George's case. Once assigned the case, Giddens conducted discovery and learned that George had confessed to the crime and that the State intended to call George's wife to testify at trial as both a victim and an eyewitness. Based on that information, Giddens developed a trial strategy to get the jury to recommend life in prison without the possibility of parole "because the facts were very bad for Mr. George." (R. 149.) Giddens evaluated the case to determine if there was an alibi defense, a third-party defense, or an insanity defense available to George. Giddens testified that George did not display any behavior that made him question George's mental-health status. Giddens, however, moved for a psychological evaluation and a psychiatric evaluation after meeting with George in jail to prepare for the penalty phase of trial and to ascertain the existence of any nonstatutory mitigating evidence. Giddens testified that he made his own observations when meeting with George but felt it best to get someone else to assist him in evaluating George's mental health. Giddens testified that he did not consult other mental-health experts outside Garner and Dr. Ronan because "based on [his] discussions with [George] and based on the evaluations, [he] didn't feel that there was any need to explore it further." (R. 159.) Giddens testified that the majority of his investigation was focused on the mitigation evidence for the penalty phase of trial. Giddens spoke to George's family members and attempted to talk to George's wife but was unsuccessful. Giddens did not obtain George's school records, medical records, or records pertaining to George's parents. Giddens did review George's Army records. On cross-examination, Giddens testified that George seemed intelligent and that George was cooperative, polite, and honest. According to Giddens, George never indicated that the reason he committed the crime was because he heard voices telling him to kill his wife or to shoot his wife. Further, George never told Giddens that he believed that his mother-in-law put a "curse or hex on him." (R. 167.) Giddens discussed George's childhood with George and George's sisters, and there was no indication of abuse or excessive drinking by George's father. Giddens testified that Dr. Ronan did not ask for any additional records before completing her psychiatric evaluation of George.

"'Counsel have a duty to investigate but this duty is confined to reasonable investigation. See Strickland [v. Washington], 466 U.S. [668] at 691, 104 S.Ct. at 2066 [(1984)]. In Funchess v. Wainwright, 772 F.2d 683, 689 (11th Cir. 1985), this Court found counsel reasonably investigated despite the fact that he had not investigated his client's psychological problems because the client never told him of any problems and the competency evaluation did not suggest any problems existed. The client also acted competently while assisting counsel in preparing his case. See id. Thus the court held that counsel was not put on notice of any problems and could not be faulted for not pursuing the matter. See id.; cf. Collins v. Francis, 728 F.2d 1322, 1349 (11th Cir. 1984) (determining that counsel who failed to investigate witnesses that the defendant did not tell him about was not ineffective).'
"'Reliance upon some family members['] statements that other mitigation witnesses did not exist was considered permissible in Singleton v. Thigpen, 847 F.2d 668, 670 (11th Cir. 1988). Rejecting a per se rule of ineffective assistance where counsel does not consult family members, we held in Williams v. Head, 185 F.3d 1223');">185 F.3d 1223, 1237 (11th Cir. 1999), that counsel's investigation was reasonable when he did not interview the defendant's sister or father, the latter because the defendant had not lived with him for very long. "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.'
"Holladay v. Haley, 209 F.3d 1243, 1251-52 (11th Cir. 2000). See also Davis v. State, 9 So.3d 539 (Ala.Crim.App.2008).
"'"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)).
"'In assessing counsel's investigation, we must conduct an objective review of their performance, measured for "reasonableness under prevailing professional norms," which includes a context-dependent consideration of the challenged conduct as seen "from counsel's perspective at the time."'
"Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)."

Washington v. State, 95 So.3d 26, 43-44 (Ala.Crim.App.2012).

         The evidence presented at the Rule 32 hearing indicates that trial counsel conducted an investigation in preparing to defend George on capital-murder and attempted-murder charges. The investigation included, among other things, speaking with George and his family, touring the crime scene, speaking to witnesses, and requesting psychological and psychiatric evaluations. Contrary to George's contention otherwise, the evidence presented at the Rule 32 hearing does not support his argument that his behavior in the weeks leading up to the crime suggested a mental illness that warranted a more extensive investigation than the investigation conducted by trial counsel. In fact, witnesses called to testify at the Rule 32 hearing described George as "normal" and "average." The descriptions given by those witnesses were also given by trial counsel who testified at the Rule 32 hearing that they observed no behaviors on the part of George that would call into question his mental health. Although Giddens requested further psychiatric evaluation on behalf of George, the record indicates that he did so in order to prepare for the penalty phase of trial, given the damning evidence of guilt against George. Accordingly, the circuit court did not abuse its discretion in denying relief on this claim.

         B.

         George next contends that his trial counsel failed to investigate whether George had the ability to form the specific intent necessary to murder the victims and to present an insanity defense during the penalty phase.

         Concerning this claim, this circuit court stated:

"George called Dr. Byron Hudson, a clinical neuro-psychologist from Massachusetts to testify at the evidentiary hearing. Over a period of years, Dr. Hudson administered tests to George, conducted a number of interviews with George, reviewed George's school, military and other records, and conducted collateral interviews with members of George's family and others that knew him. Dr. Hudson diagnosed George with Schizotypal Disorder and mild cognitive disorder or Static Encephalothy. (H.R. 248-249.) Dr. Hudson testified that factors conducive to a psychotic break were present around the time of the murders and that if George had had such a break he could have had a breach in reality. (H.R. 270.)
"In rebuttal, the State presented the testimony of Dr. Glen King via deposition. Dr. King has been recognized as an expert in clinical and forensic psychology. (K.D. 12.) Dr. King reviewed the results of the tests administered by Dr. Hudson as well as other data sources and conducted a clinical interview with George. Dr. King opined that George did not meet the criteria for a diagnosis of Schizotypal Disorger. (K.D. 32.) Dr. King also concluded that George was able to understand the nature and wrongfulness of his actions at the time of the murders. (K.D. 34.)
"In response to Dr. King's testimony, this Court permitted George to submit rebuttal testimony from Dr. Hudson via deposition. At his deposition, Dr. Hudson expressed his opinions regarding the reliability and accuracy of Dr. King's conclusions and his qualifications to render those opinions. On cross-examination, Dr. Hudson indicated that George knew shooting the victims was wrong. (H.D. 212-213.)
"Judge Fannin testified that he spoke with George on numerous occasions prior to trial and had no recollection of George ever complaining about hearing voices. (H.R. 58, 72.) Based on his interaction with George and the results of Dr. Ronan's evaluation, Judge Fannin opined that an insanity defense was not a viable guilt phase defense. (H.R. 74.) Mr. Giddens also believed that a mental disease or defect defense was not a viable guilt phase defense. (H.R. 88.) According to Mr. Giddens, George never displayed any behavior or psychotic symptoms that caused him to question George's mental state. (H.R. 92, 96.) George never told Mr. Giddens he shot the victims because voices told him to murder his wife. (H.R. 105.) In her written mental evaluation, Dr. Ronan reports that she found no evidence George was psychotic at the time of the offense or that he suffered from any major mental illness that would have interfered with his ability to understand right from wrong. (C.R. 23.)
"... The testimony of Dr. Hudson does not prove Mr. Giddens and Judge Fannin were ineffective during the guilt phase."

(C. 1198-1200.) Those findings are supported by the record.

         Dr. Hudson, a neuropsychologist, testified at the Rule 32 hearing that he met with George three times at Holman Prison between October 2005 and May 2009. During his visits, Dr. Hudson conducted several psychological and neuropsychological tests on George. Dr. Hudson testified that he reviewed the results of those tests and approximately 500 pages of documents that included George's medical records, military records, and academic records. Dr. Hudson also spoke with two of George's sisters, two of George's friends, and George's grandmother. Based on this information, Dr. Hudson diagnosed George with schizotypal disorder -- a personality disorder --and static encephalopathy. Dr. Hudson testified that a person with schizotypal disorder was an "individual who really doesn't fit into [sic] with the world", who would "rather be alone" and "isolated." (R. 321.) Dr. Hudson stated that there was no "evidence of unusual perceptual experiences such as hearing things or feeling things." (R. 327.) Further, Dr. Hudson testified that, in George's case, the breakdown of a relationship would probably not cause enough distress to trigger a psychotic episode. Dr. Hudson guessed that the distress would "more than likely come from a lack of control over the relationship that he used to have control over." (R. 330.) When asked whether George had a psychotic break when he committed the murders, Dr. Hudson replied that he had all the factors that would be conducive to a psychotic break and that George "had all the makings for a psychotic break." (R. 331.) Dr. Hudson opined that "[i]f [George] had a psychotic break, by nature [he had] breached reality." (R. 331-32.)

         In response to Dr. Hudson's testimony, the State retained Dr. Glen King to conduct an evaluation of George. Dr. King did not administer any psychological or neuropsychological tests on George, but, instead, relied on the report generated by Dr. Hudson and the test results set forth in that report. Dr. King explained that he was prepared to conduct psychological tests or neuropsychological tests on George but did not do so because he "couldn't see anything in the records that would lead [him] to believe that was necessary." (C. 1132.) After conducting a clinical interview of George, reviewing the results of tests administered by Dr. Hudson, and reviewing other data, Dr. King found no evidence of serious mental disease or defect in George. Dr. King testified that George communicated with him well during the interview, that George was pleasant, and that George was cooperative. Dr. King said that George laughed at the suggestion that George practiced voodoo. Dr. King opined that George did not fit the diagnostic criteria for schizotypal personality disorder. According to Dr. King, George understood the nature and gravity of his actions and the wrongfulness of his acts at the time he committed the crimes.

         In rebuttal to Dr. King's deposition testimony, George deposed Dr. Hudson. At his deposition, Dr. Hudson discredited Dr. King's conclusions. Dr. Hudson testified that Dr. King was not a neuropsychologist and questioned whether Dr. King was qualified to interpret the evaluations Dr. Hudson conducted on George. Dr. Hudson also questioned the methodology used by Dr. King in reaching his conclusions and was troubled by Dr. King's failure "to evaluate [George] outside of a psychiatric interview dependent on a self-report." (C. 646.) Dr. Hudson opined that George wanted order and structure. According to Dr. Hudson, "a total loss of stability" and "a total eradication of [George's] power base ... would have caused enough distress for a schizotypical individual to go over and become psychotic and deranged." (C. 846.) Dr. Hudson ...


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