from Talladega Circuit Court (CC-94-203.60 and CC-94-204.60)
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.
and Procedural History
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).
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.
November 19, 1999, George timely filed the instant Rule 32
petition, raising several claims, including claims of
ineffective assistance of trial counsel. 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
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
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.
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
Wilkerson v. State, 70 So.3d 442, 451
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).
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).
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
"'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
"'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."
these principles in mind, we address each of George's
claims in turn.
first contends that his trial counsel was ineffective for
failing to prepare and present a mental-health defense at the
guilt phase of trial.
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.)
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,
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.
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. 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.
also presented the testimony of his trial attorneys, Jeb
Fannin 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,"
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
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. 
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
"'"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
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.
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.
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
(C. 1198-1200.) Those findings are supported by the record.
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.)
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
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 ...