United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION
R.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
In
capital litigation, the stakes are high. Fortunately, counsel
who represent capital defendants are generally (and
admirably) committed to their chosen work. It is hard work;
lawyers who represent capital defendants feel the full weight
of the world (or, at least, their client's life and
future) on their shoulders. They must pour heart, soul, and
health (not to mention resources) into their trade. And, when
they are unsuccessful (as they often are), they realize that
every move they make will be second guessed. That is the way
it is and must be, because Congress and the courts have
established a rigorous framework to review counsel's
conduct to ensure counsel provided constitutionally adequate
representation. Additionally, the federal habeas statute
requires federal courts to review state courts' handling
of a prisoner's conviction, sentence, and postconviction
claims. Before the state can “wield the sword, ”
as a general rule, that type of review must occur. This case
is no different. Petitioner James Edward Barber has presented
a number of claims which call upon this court to review both
his trial counsel's and the state courts' handling of
his trial, appeal, and postconviction proceedings.
One of
Barber's claims presents a particularly interesting
question: What happens when counsel's performance is
limited not by the lawyer's unreasonable deficiency but,
rather, by a client's own choices? The Supreme Court has
spoken directly to that scenario. And, that is the
circumstance presented by the first of Barber's claims in
this case. During his pretrial proceedings and at his trial,
Barber insisted he did not kill Dorothy Epps. In fact, he
did. There is no question about that. After his trial and
direct appeal, he admitted it. But earlier, in the trial
court, Barber insisted he was innocent and refused to permit
his lawyers to present any defense that would have involved
admitting he killed Epps.
Not
until after his conviction and death sentence became final
did Barber change his tune. He now says he killed Epps, but
there were mitigating circumstances involved. He was
intoxicated when he killed her and did not kill her during a
robbery. Both these defenses had the potential, if believed
by the jury, to spare Barber's life. But, they were never
asserted. Barber says they should have been. He claims that,
even though he insisted at the time that his lawyers not
present those defenses, their failure to present them
violated his constitutional right to effective assistance of
counsel.
Barber
makes a number of other claims, too. He raises a
Strickland claim based on his counsel's
penalty-phase performance, challenges certain rulings of the
state trial and appellate courts, and makes claims based on
the prosecution's conduct and other circumstances of his
trial. Accordingly, he has petitioned for a writ of habeas
corpus under 28 U.S.C. § 2254 challenging his 2003
capital murder conviction and death sentence in Alabama state
court. (Doc. # 1). The parties have fully briefed
Barber's claims. (Docs. # 1, 20, 23). After careful
consideration of each of his claims in light of the record,
the pleadings, and the applicable provisions of 28 U.S.C.
§ 2254, the court concludes that Barber has not shown he
is entitled to habeas relief. Accordingly, and for the
reasons stated below, his petition for a writ of habeas
corpus is due to be denied.
Table
of Contents
I.
Background and Procedural History
..................................................................................
6
II.
Standard of Review
...............................................................................................................
8
III.
Barber's Claims for Relief
.................................................................................................
11
A.
Barber's Guilt-Phase Strickland Claim
.........................................................................
11
1.
Barber's Arguments
...................................................................................................
13
a.
Failure to Investigate Alternative Defenses
........................................................ 14
b.
Pursuit of an “Impossible” Innocence Defense
.................................................. 17
c.
Prejudice
................................................................................................................
18
2. The
State Court's Decision
.........................................................................................
20
3. The
State Court's Decision Was Reasonable
............................................................
24
a.
Deficient Performance
..........................................................................................
25
i.
Investigation of Alternative Defenses
..............................................................
25
ii.
Pursuit of Innocence Defense at Trial
.............................................................
31
b.
Prejudice
................................................................................................................
34
B.
Barber's Penalty-Phase Strickland Claim
.....................................................................
36
1.
Barber's Arguments
...................................................................................................
37
a.
Failure to Conduct a Reasonable Mitigation Investigation
.............................. 37
b.
Prejudice
................................................................................................................
40
2. The
State Court's Decision
.........................................................................................
41
3. The
State Court's Decision Was Reasonable
............................................................
44
a.
Deficient Performance
..........................................................................................
44
b.
Prejudice
................................................................................................................
47
i.
Mitigation Evidence at Barber's Penalty-Phase Trial
.................................. 47
ii.
Mitigation Evidence at Barber's Rule 32 Hearing
......................................... 51
iii.
Reweighing the Mitigation Evidence
...............................................................
53
C.
Barber's Claims That the Trial Court Improperly Precluded
the Jury from Considering Certain Mitigation Evidence and
Failed to Instruct the Jury Regarding Mercy
.............................................................................................
57
1. The
Trial Court's Instructions Regarding the Testimony of
Barber's Family and Friends
..................................................................................................................
58
2. The
Trial Court's Failure to Give an Instruction Regarding
Mercy ..................... 60
D.
Barber's Ring v. Arizona Claim
.....................................................................................
63
1.
Relevant Supreme Court Precedent
..........................................................................
63
2.
Alabama's Capital Sentencing Scheme and Barber's
Death Sentence .................. 65
3. The
State Court's Rejection of Barber's Claim Was
Reasonable .......................... 67
E.
Barber's Claim That His Indictment Was Defective
................................................... 70
F.
Barber's Claims Based on the State Court's Reliance
on Ex Parte Waldrop, 859 So.2d 1181 (Ala. 2002) in
Affirming His Death Sentence
.................................... 72
G.
Barber's Claim Based on the Trial Court's Admission
of Testimony About the Partial Palm Print
...........................................................................................................
77
H.
Barber's Claim That the State Vouched for the Credibility
of Its Witnesses ........... 82
1.
Barber's Arguments and the State Court's Decision
.............................................. 82
2.
Relevant Supreme Court Precedents
........................................................................
83
3. The
State Court's Rejection of Barber's Vouching Claim
Was Reasonable ........ 86
I.
Barber's Claim That the Trial Court Permitted Improper
Opinion Testimony at the Penalty Phase
........................................................................................................
88
J.
Barber's Claim That Alabama's Death-Qualification
Process Produced a Conviction-Prone Jury in Violation of His
Right to an Impartial Jury ..................... 89
K.
Barber's Claim That the State's Decision to Seek the
Death Penalty Was Impermissibly Influenced by the
Victim's Family Members
..................................... 90
1.
Factual Background
....................................................................................................
91
2.
Analysis
........................................................................................................................
92
a. The
State Court's Factual Determination Stands
.............................................. 93
b. The
State Court's Rejection of Barber's Claim Was
Reasonable .................... 94
L.
Barber's Claims That the Prosecutor Made Impermissible
Comments on His Failure to Testify and Impermissibly Shifted
the Burden of Proof to Him ............... 99
1.
Factual Background
....................................................................................................
99
2. The
Prosecutorial-Commentary Claim
...................................................................
100
3. The
Burden-Shifting Claim
......................................................................................
102
M.
Barber's Claim Based on the Trial Court's Admission
of Barber's Confession .... 103
N.
Barber's Claim Based on the Jury Viewing Him in Shackles
and Handcuffs ........ 104
O.
Barber's Cumulative-Effect Claim
.............................................................................
108
IV.
Conclusion
.....................................................................................................................
108
I.
Background and Procedural History
To
discuss the issues raised by Barber's federal habeas
petition, the court need only briefly recount the crime at
issue. Barber was convicted and sentenced to death in Madison
County, Alabama, for the murder of Dorothy Epps during the
course of a first-degree robbery. See Ala. Code
§ 13A-5-40(a)(2); Barber v. State, 952 So.2d
393, 400 (Ala.Crim.App.2005). Barber knew Epps before killing
her. Barber, 952 So.2d at 401. He previously had a
romantic relationship with Epps' daughter, and he had
performed repair work at the Epps home in the past.
Id. at 401, 405. One weekend in May 2001, Barber
entered Epps' home while she was alone and beat her to
death. Id. at 401-05. There was no evidence of
forced entry at the Epps home, making it more likely than not
that Barber gained access to the home easily because of his
acquaintance with Epps. Id. at 401. The evidence at
trial showed that Barber first struck Epps in the face with
his fist and then inflicted multiple blunt-force injuries
using a claw hammer. Id. The medical examiner who
performed Epps' autopsy found evidence of nineteen
different lacerations and seven fractures in the head or
skull caused by the blows. Id.
Crime
scene investigators discovered a large amount of Epps'
blood all around the area she was found, including the floor,
walls, furniture, and ceiling. Id. at 402. They also
found a bloody palm print on a counter in the area where Epps
was found. A latent print examiner with the Huntsville Police
Department later compared the bloody print to the known palm
print of Barber and testified unequivocally that the palm
print found on the countertop was Barber's. Id.
at 402.
State
authorities took Barber into custody on May 24, 2001, less
than one week after the murder. Id. at 403.
Investigator Dwight Edger interviewed Barber three times
between May 23 and May 25, 2001, and each time Barber waived
his Miranda rights and agreed to speak with Edger.
Id. at 404. In the first two interviews Barber
denied any knowledge of the crime, but in the third interview
he confessed to the crime after Edgar informed him that
officers had recovered his bloody palm print from the crime
scene. Id. at 404-05.
During
the third interview, Barber became very emotional and stated
that “he had been using cocaine all day” on the
day of the murder and that “he was really ‘f-ed
up' and did not plan to kill the victim.”
Id. at 404. He went on to describe Epps' killing
in some detail:
And I was going over to see [Epps] . . . I stopped over there
and was going to talk to her about the shutters and all of a
sudden I just figured, well, you know, she's probably got
a few bucks, you know, I should ask her for some money, and I
just turned around and hit her. Something came over me, I
just BOOM-turned around and hit her.
(Vol. 23 at 1238). Barber further explained in the third
interview that he:
hit the victim with his hands and then with a hammer; that he
threw the hammer in the trash and took the trash bag; that he
took the victim's purse because it looked good and not to
rob her; and that he threw the bag, purse, and his shoes in a
dumpster at a carwash.
Barber, 952 So.2d at 405. During the third
interview, Barber estimated that he killed Epps around 7:00
pm on Saturday, May 19, 2001. Id.
Barber
was tried for capital murder in Madison County Circuit Court.
His trial began on December 9, 2003. (State Court Record,
Vol. 8, Tab R-10 at 407).[1] On December 15, 2003, the jury found
Barber guilty of murdering Epps during the course of a
robbery. (Vol. 11 at 1189). On December 16, 2003, the jury
recommended by a vote of eleven to one that Barber be
sentenced to death. (Vol. 12, Tab R-32 at 1330). On January
9, 2004, the trial court accepted the recommendation of the
jury and sentenced Barber to death. (Vol. 12, Tab R-34 at
1361; Vol. 12, Tab R-35 at 270).
Barber
appealed to the Alabama Court of Criminal Appeals,
challenging his conviction and sentence on a variety of
constitutional grounds. See generally Barber, 952
So.2d 393. The Court of Criminal Appeals affirmed
Barber's conviction and sentence. Id. at 464.
The Court of Criminal Appeals denied Barber's petition
for rehearing on July 8, 2005, and the Alabama Supreme Court
denied his petition for writ of certiorari on September 22,
2006. Id. at 393. The Supreme Court of the United
States denied Barber's petition for writ of certiorari on
March 26, 2007. Barber v. Alabama, 549 U.S. 1306
(2007).
Barber
filed a petition for state postconviction relief under
Alabama Rule of Criminal Procedure 32. (Vol. 17, Tab R-47 at
14). After conducting a hearing, the Madison County Circuit
Court denied his petition. (Vol. 22, Tab R-59 at 1115). The
Alabama Court of Criminal Appeals affirmed. (Vol. 29, Tab
R-65 at 26). Barber then filed an application for rehearing
in the Court of Criminal Appeals, which was denied. (Vol. 29
at Tab R-66). Finally, Barber filed a petition for writ of
certiorari in the Alabama Supreme Court on August 17, 2015.
(Vol. 29 at Tab R-67). The Alabama Supreme Court denied the
petition on September 25, 2015. (Vol. 29 at Tab R-68).
In
March 2016, Barber filed his federal habeas petition in this
court. (Doc. # 1). Respondent Jefferson Dunn, Commissioner of
the Alabama Department of Corrections, asserts that each of
Barber's claims for relief lacks merit and that the
petition is therefore due to be denied. (Doc. # 20). Barber
has filed a reply brief in support of his petition. (Doc. #
23). Before addressing the merits of Barber's petition,
the court explains the standard of review that applies to his
claims.
II.
Standard of Review
Each of
the claims raised in Barber's federal habeas petition was
previously raised on direct appeal from his conviction or in
state postconviction proceedings. Because Barber petitioned
the Alabama Supreme Court for a writ of certiorari both on
direct appeal and following postconviction proceedings, he
has “invok[ed] one complete round of [Alabama's]
established appellate review process” and thereby
exhausted his state court remedies as required by 28 U.S.C.
§ 2254(b)(1). O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999); see also Smith v. Jones, 256
F.3d 1135, 1141 (11th Cir. 2001); Pruitt v. Jones,
348 F.3d 1355, 1359 (11th Cir. 2003). Thus, there are no
exhaustion or procedural default issues raised by
Barber's federal habeas petition.
The
claims in Barber's petition are governed by the
deferential standard of review mandated by Congress in 28
U.S.C. § 2254(d). Under that standard, a federal court
may grant habeas corpus relief to a state prisoner for claims
adjudicated on the merits by a state court only if the
petitioner shows that the state court proceedings resulted in
a decision that was:
(1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, ”
or
(2) “based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”
28 U.S.C. § 2254(d)(1), (2); see also Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (stating that §
2254(d) requires a “highly deferential standard for
evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the
doubt” (internal citation and quotation marks
omitted)). This court's review of Barber's claims
under § 2254(d)(1) is limited to the record that was
before the state courts that adjudicated those claims on the
merits. Cullen v. Pinholster, 563 U.S. 170,
181 (2011). Similarly, the state courts' decisions must
be “measured against [the Supreme] Court's
precedents as of the time” the state courts rendered
their decisions. Id. at 182 (internal quotation
marks omitted).
Section
2254(d)(1)'s “contrary to” clause applies
when the state court reaches a conclusion “opposite to
that reached by the Supreme Court on a question of law or if
the state court decides a case differently than the Supreme
Court has on a set of materially indistinguishable
facts.” Jones v. GDCP Warden, 753
F.3d 1171, 1182 (11th Cir. 2014) (quoting Williams v.
Taylor, 529 U.S. 362, 413 (2000)) (brackets omitted). An
“unreasonable application” of Supreme Court
precedent under § 2254(d)(1) occurs when the state court
“identifies the correct governing legal principle from
the Supreme Court's decisions but unreasonably applies
that principle to the facts of the prisoner's
case.” Id. (quoting Williams, 529
U.S. at 413) (brackets omitted). The Supreme Court has
explained that an “unreasonable application of”
its prior holdings must be “objectively unreasonable,
” not merely wrong; so, even “clear error”
will not suffice to allow relief under this clause of §
2254(d)(1). Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003). Rather, “[u]nder § 2254(d), a habeas court
must determine what arguments or theories supported . . . the
state court's decision; and then it must ask whether it
is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with” a prior
holding of the Supreme Court. Harrington v. Richter,
562 U.S. 86, 102 (2011). This question, the Supreme Court has
observed, is “the only [one] that matters under §
2254(d)(1).” Lockyer, 538 U.S. at 71. To the
extent that Barber disputes a factual determination by the
state courts, this court may only overturn a state
court's factual findings if Barber “produces
‘clear and convincing evidence' that those findings
are erroneous.” Jones, 753 F.3d at 1182
(quoting 28 U.S.C. § 2254(e)(1)).
To
determine whether Barber is entitled to habeas relief based
on a claim that was adjudicated on the merits in state court,
a federal habeas court looks to the decision of “the
last state court to decide [the] claim . . . .”
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018);
see also Newland v. Hall, 527 F.3d 1162, 1199 (11th
Cir. 2008) (“[T]he highest state court decision
reaching the merits of a habeas petitioner's claim is the
relevant state court decision.”). In Barber's case,
the relevant decisions are the opinions of the Alabama Court
of Criminal Appeals affirming his conviction and sentence on
direct appeal, Barber v. State, 952 So.2d 393
(Ala.Crim.App.2005), and affirming the denial of his Rule 32
petition in postconviction proceedings, (Vol. 29, Tab R-65 at
1-26). Where, as here, the last state court to decide a
prisoner's federal claim “explains its decision on
the merits in a reasoned opinion, ” a federal court
“simply reviews the specific reasons given by the state
court and defers to those reasons if they are
reasonable.” Wilson, 138 S.Ct. at
1192.[2]
The
court's review of Barber's § 2254 petition is
highly deferential to the state courts' resolution of his
claims. See Ferguson v. Culliver, 527 F.3d 1144,
1146 (11th Cir. 2008). If “fairminded jurists could
disagree” on the correctness of the state court's
decision, federal habeas relief is precluded.
Harrington, 562 U.S. at 101.
III.
Barber's Claims for Relief
Barber,
through counsel, has asserted a number of claims in his
§ 2254 petition. The court addresses each, in turn.
A.
Barber's Guilt-Phase Strickland Claim
Barber
first claims he received ineffective assistance of counsel at
the guilt phase of his trial, in violation of the Sixth
Amendment as interpreted in Strickland v.
Washington, 466 U.S. 668 (1984). (Doc. # 1 at 29-78)
An
ineffective assistance of counsel claim under the Sixth
Amendment has two elements. First, a defendant “must
show that counsel's performance was deficient.”
Strickland, 466 U.S. 668, 687 (1984). Second, he
must show that counsel's deficient performance prejudiced
his defense. Id.
To
establish deficient performance, a defendant “must show
that counsel's representation fell below an objective
standard of reasonableness.” Harrington, 562
U.S. at 104 (internal quotation marks omitted).
Reasonableness must be determined by reference to
“prevailing professional norms.” Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en
banc) (quoting Strickland, 466 U.S. at 688).
Reviewing courts “must apply a ‘strong
presumption' that counsel's representation was within
the ‘wide range' of reasonable professional
assistance.” Harrington, 562 U.S. at
104. The burden is on the defendant to show
“that counsel made errors so serious that counsel was
not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id.
(quoting Strickland, 466 U.S. at 687).
To
establish prejudice, a defendant “must demonstrate
‘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. (quoting
Strickland, 466 U.S. at 694). To show prejudice,
“[i]t is not enough ‘to show that the errors had
some conceivable effect on the outcome of the
proceeding.'” Id. (quoting
Strickland, 466 U.S. at 693). Rather,
“[c]ounsel's errors must be ‘so serious as to
deprive the defendant of a fair trial, a trial whose result
is reliable.'” Id. (quoting
Strickland, 466 U.S. at 687). In other words,
“[t]he likelihood of a different result” absent
counsel's deficient performance “must be
substantial, not just conceivable.”
Id. at 112 (emphasis added).
The
Supreme Court has described Strickland's
standard as “highly deferential.” Id. at
105 (internal quotation marks omitted). It has explained that
“[s]urmounting Strickland's high bar is
never an easy task.” Id. (internal quotation
marks omitted). Thus, when reviewing a state court's
adjudication of a Strickland claim under §
2254(d)'s highly deferential standard, a federal court
must be “doubly deferential.” Burt v.
Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks
omitted). That means giving “both the state court and
the defense attorney the benefit of the doubt.”
Id. Because “[t]he Strickland
standard is a general one, ” “the range of
reasonable applications” under § 2254(d) “is
substantial.” Harrington, 562 U.S. at 105.
Thus, “[w]hen § 2254(d) applies, the question is
not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that
counsel satisfied Strickland's deferential
standard.” Id.
Barber
raised his guilt-phase ineffective assistance claim before
the Alabama Court of Criminal Appeals when he appealed the
denial of his Rule 32 petition. He contends the Court of
Criminal Appeals unreasonably rejected his guilt-phase
ineffective assistance of counsel claim. The court divides
its discussion of this claim into three parts. First, it
recounts Barber's arguments that he received ineffective
assistance of counsel at the guilt phase of his trial.
Second, it reviews the state court's reasoning in
rejecting Barber's claim. Third, it explains why the
state court neither acted contrary to nor unreasonably
applied clearly established Supreme Court precedent in
rejecting Barber's claim.
1.
Barber's Arguments
Barber
argues his trial counsel were deficient during the guilt
phase of his trial for two principal reasons: (1) they failed
to adequately investigate and discuss with Barber two
alternative lines of defense and (2) they pursued an
“impossible” innocence defense at trial to the
exclusion of other more viable defenses they could have
presented. He claims trial counsel's performance
prejudiced him because evidence he presented in state
postconviction proceedings actually proved the alternative
defenses that trial counsel failed to investigate and present
at trial, and those alternative defenses could have reduced
his conviction from a capital offense to a noncapital
offense.
a.
Failure to Investigate Alternative Defenses
First,
Barber faults his trial counsel for failing to thoroughly
investigate and present a manslaughter defense based on
evidence that he was intoxicated at the time of the crime.
Barber claims it was objectively unreasonable for his counsel
not to investigate and inform him of the possibility of
arguing that he was so intoxicated at the time of the killing
that he was incapable of forming the specific intent to kill
required for a murder conviction under Alabama law. (Doc. # 1
at ¶¶ 59-75). Barber's argument is based on
several sources of evidence tending to show his intoxication
at the time of the crime and his general propensity for
substance abuse.
In
Barber's videotaped confession to police, he stated that
on the day he killed Epps:
[I] had been doing coke all day long at my house. The stuff
just makes you fucked up. And I was going over to see [Epps]
. . . I stopped over there and was going to talk to her about
the shutters and all of a sudden I just figured, well, you
know, she's probably got a few bucks, you know, I should
ask her for some money, and I just turned around and hit her.
Something came over me, I just BOOM-turned around and hit
her.
. . .
I just turned around and hit her. I don't know why, I
just . . . I guess I was just all fuckin' drugged up and
. . . I don't know. I was, I was fucking insane almost,
you know.
(Vol. 23 at 1238, 1241). Barber's videotaped confession
was admitted in evidence at trial and played for the jury.
(Vol. 10 at 981-82). There is no dispute Barber's counsel
were aware of the confession.
Trial
counsel were also aware that Barber had a history of
substance abuse and addiction. Barber explained his
experience with cocaine addiction in his videotaped
confession:
And once you start doing, you just can't stop. I mean,
once you start doing that stuff, you can't stop doing it.
It takes a hold of you and you just-you spend every fucking
penny you got on it. It makes you all fucked up. But yet you
can't stop doing it.
(Vol. 23 at 1242).
Dr.
Marianne Rosenzweig, a forensic and clinical psychologist
hired to assess Barber's competency to confess, also
reported Barber's history of cocaine and alcohol abuse to
Barber's counsel: “[Barber] was using a few hundred
dollars' worth [of cocaine] at a time twice a week at the
time that he was arrested [for Epps' murder]. . . . Mr.
Barber also reports that he has had a problem with alcohol
since his early 20's . . . .” (Vol. 23 at 1210-11).
In light of this evidence, Barber claims his trial
counsel's failure to investigate and discuss a
manslaughter defense with him was objectively unreasonable.
Second,
Barber also faults his trial counsel for failing to
thoroughly investigate and discuss with him a defense based
on the theory that Barber committed robbery as a mere
afterthought to the murder. In Alabama, murder is a capital
offense if committed during a first-degree robbery. Ala. Code
§ 13A-5-40(a)(2). The state charged Barber with capital
murder based on the allegation that he killed Epps during the
commission of a robbery-specifically, that he stole her purse
after beating her to death. (Vol. 1, Tab R-1 at 9). Under
Alabama law, “a robbery committed as a ‘mere
afterthought' and unrelated to the murder will not
sustain a conviction under § 13A-5-40(a)(2) for the
capital offense of murder-robbery.” Connolly v.
State, 500 So.2d 57, 63 (Ala.Crim.App.1985). Barber
argues that statements in his confession showed he lacked the
intent to rob Epps before killing her. He claims his trial
counsel unreasonably failed to investigate and inform him of
the mere afterthought defense, which, if implemented, could
have reduced his conviction from capital to noncapital
murder.
Barber
claims several statements in his taped confession show that
his theft of Epps' purse was a “mere afterthought,
” unrelated to his decision to kill her. He points to
his description of the killing as unplanned, illogical, and
purposeless:
I mean I just don't even know how it happened like. I
just kinda snapped. I mean, we weren't arguing or nothing
. . . I just thought I needed some money, you know. . . I
just figured, well, you know, she's probably got a few
bucks, you know, I should ask her for some money, and I just
and I just turned around and hit her. Something came over me.
I just BOOM-turned around and hit her. I don't know why.
(Vol. 23 at 1236, 1238). He also points to his response when
asked what he did with Epps' purse: “I didn't
take the purse to rob her. I just figured it looked good, I
was like, freaking out.” (Vol. 23 at 1237). In light of
this evidence, Barber claims his trial counsel's failure
to investigate and discuss a mere afterthought defense with
him was objectively unreasonable.
Barber
admitted to killing Epps at his Rule 32 evidentiary hearing,
but at the time of his trial “he insisted . . . that he
was innocent and had nothing to do with Epps's
murder.” (Vol. 29, Tab R-65 at 14). Indeed, the state
courts found that Barber “would not consider any
defense that required him to admit that he killed Epps”
and that he “refused” to consider “trying
the case on the basis that [he] was intoxicated when he
killed Epps.” (Id. at 13). Barber nevertheless
maintains that “just because a defendant insists he is
innocent and demands that counsel pursue[ ] an innocence
defense does not make it reasonable for counsel to follow his
wishes.” (Doc. # 1 at 46, ¶ 88). In short, Barber
argues his counsel were deficient for failing to “make
an informed evaluation of all possible defenses” and
“have meaningful discussions with [him] about these
defenses and the realities of the case.”
(Id.). The import of his argument is that, had
counsel investigated and discussed the manslaughter and mere
afterthought defenses with him, Barber likely would have
instructed counsel to pursue those defenses instead of
complete innocence, thereby potentially avoiding a capital
conviction.
b.
Pursuit of an “Impossible” Innocence
Defense
Finally,
in addition to failing to investigate and inform him of
alternative defenses, Barber faults his trial counsel for in
fact pursuing an innocence defense at trial -- a defense he
now characterizes as “impossible” -- instead of
the more viable manslaughter and mere afterthought defenses
discussed above. Barber claims evidence that could have been
used to support both the intoxication and mere afterthought
defenses was presented at trial, despite counsel's
failure to investigate. Specifically, Barber points to
statements in his videotaped confession regarding his cocaine
usage on the day of the crime and his statement, “I
didn't take the purse to rob her. I just figured it
looked good . . . .” (Vol. 23 at 1237). Because the
confession was played for the jury, Barber claims it was
objectively unreasonable for his trial counsel not to argue
the intoxication and mere afterthought defenses to the jury.
Though Barber recognizes that his counsel obtained jury
instructions on the lesser-included offenses of manslaughter,
felony murder, and intentional murder (Vol. 11, Tab R-21 at
1147-55), and specific instructions regarding the
intoxication and mere afterthought defenses (Id. at
1152-53, 1166), he claims the manslaughter instruction
“was rendered meaningless because Trial Counsel failed
to make any argument to the jury that Mr. Barber's
intoxication at the time of the offense could have deprived
him of the requisite intent.” (Doc. # 1 at 50-51). He
also criticizes his trial counsel for making “only a
half-hearted attempt” to argue that the state failed to
prove the killing occurred during the commission of a
robbery. (Id. at 53). In short, Barber claims it was
objectively unreasonable for his counsel to primarily pursue
an innocence defense at trial and to give short shrift to
what he contends were the more viable intoxication and mere
afterthought defenses.
c.
Prejudice
Barber
claims he was prejudiced by his trial counsel's failure
to investigate and discuss the manslaughter and mere
afterthought defenses with him and their decision to instead
pursue an innocence defense at trial. He argues that evidence
presented at his Rule 32 hearing proved the manslaughter and
mere afterthought defenses. And though he does not expressly
argue it, Barber implies that had his trial counsel
adequately investigated and discussed the manslaughter and
mere afterthought defenses with him, he would have instructed
his counsel to pursue those defenses at trial instead of the
innocence defense he insisted on at the time.
At his
Rule 32 hearing, Barber testified about his drug and alcohol
use on the day he killed Epps and the day prior to the
killing. (Vol. 26 at 403-14). He prefaced his testimony by
stating, “Like I said, my memory is what it is and I
can't tell you every time I stopped and got crack during
this period. But I'm going to do my best.”
(Id. at 403). He also gave the following caveat
about his estimates of the amount of drugs and alcohol he
consumed prior to killing Epps: “I mean, you know, none
of these numbers that I'm giving you are gospel because
it's a long time ago and I was pretty messed up.”
(Id. at 407). He proceeded to testify that on the
day before he killed Epps he smoked several hundred
dollars' worth of crack cocaine, likely took four to
seven prescription pain pills, and drank a case of beer and a
large bottle of wine. (Id. at 404-07). He fell
asleep that night and woke up at approximately 6:00 or 6:30
am the next morning. (Id. at 407). On the day of the
crime, Barber testified that he continued to use crack
cocaine, prescription pain pills, and alcohol prior to
killing Epps. (Id. at 408). When asked how much
alcohol he drank that day, Barber responded: “I
couldn't tell you with any -- really with any kind of
truth to it. It was quite a bit.” (Id. at
408). He nevertheless proceeded to testify that he smoked
several hundred dollars' worth of crack cocaine, took at
least four to five prescription pain pills, and drank at
least a case of beer before killing Epps that evening.
(Id. at 409-14). Barber described the extent of his
intoxication at this point, shortly before he killed Epps, as
“very, very intense, ” and stated he was
“very wasted.” (Id. at 414).
Barber
also offered the expert testimony of Dr. Alexander Morton at
his Rule 32 hearing to explain how his alleged intoxication
could have affected his ability to form the intent required
for a murder conviction. (Id. at 452-521). Dr.
Morton testified that crack cocaine users can be
“mildly violent to extremely violent” and can
experience cognitive impairment. (Id. at 483,
486-87). Dr. Morton also testified that using the combination
of substances Barber used on the day he killed Epps could
lead the user to be unable to control his actions.
(Id. at 510).
Barber
also testified regarding the mere afterthought defense at his
Rule 32 hearing. He stated that he went to Epps' home to
pick up a shutter he had been repairing for her.
(Id. at 412). He described his attack on Epps as
unprovoked and unplanned. (Id. at 414-15)
(“[I] just seemed to snap . . . and I don't know
why. . . . I do know that I [killed her]. And I don't
know why.”). And he explained that his intent to steal
Epps' purse did not arise until sometime after the
killing, when he returned to the crime scene to make it look
like Epps had been killed by a random intruder during a
robbery. (Id. at 417) (“I thought,
‘Maybe I can make it look like a crime,' you know,
‘somebody broke in here.' So I moved a few things
around, pulled out the phone jacks. And I threw her
pocketbook in that garbage bag with the hammer. . . . And I
left and I went home.”).
Finally,
Barber also testified at his Rule 32 hearing that his trial
counsel failed to discuss with him the possibility of
pursuing the manslaughter or mere afterthought defenses to
obtain a noncapital conviction. (Id. at 426-27).
Based
on the evidence presented at his Rule 32 hearing, Barber
contends there is a “reasonable probability that, but
for [his] counsel's unprofessional errors, ” the
result of his guilt-phase trial would have been different.
Strickland, 466 U.S. at 694. He suggests that had
his counsel adequately investigated the manslaughter and mere
afterthought defenses, and discussed those defenses with him,
he likely would have instructed his trial counsel to pursue
those alternative defenses in hopes of obtaining a noncapital
conviction. And, he claims that had counsel pursued those
alternative defenses at trial instead of an
“impossible” innocence defense, there is a
reasonable probability that he would have been convicted of
manslaughter or noncapital murder.
2.
The State Court's Decision
Barber
presented his Strickland claims to the state courts
in a Rule 32 postconviction proceeding. The Alabama Court of
Criminal Appeals affirmed the Rule 32 court's denial of
Barber's guilt-phase ineffective assistance claim. (Vol.
29, Tab R-65 at 10-19). The Court of Criminal Appeals held
that Barber's counsel were not deficient for failing to
pursue the manslaughter and mere afterthought defenses
because both defenses “would have required Barber to
admit that he killed Epps, ” and “[t]estimony at
the evidentiary hearing revealed that Barber denied killing
Epps” at the time of his trial and instead
“insisted that trial counsel pursue an innocence
defense.” (Id. at 12). In light of
Barber's insistence that trial counsel pursue an
innocence defense, the state court concluded that
“Barber failed to prove that counsel were ineffective
in their investigation and presentation of alternative
defenses.” (Id. at 14). The court also found
that “Barber failed to prove that he was prejudiced by
counsels' decision not to present alternative
defenses” at trial. (Id.). The relevant
portions of the state court's opinion are worth quoting
in full:
[B]oth [the manslaughter and mere afterthought] lines of
defense would have required Barber to admit that he killed
Epps. Testimony at the evidentiary hearing revealed that
Barber denied killing Epps and insisted that trial counsel
pursue an innocence defense. Barber's trial counsel
testified that he “made sure Mr. Barber knew all about
the evidence and all about the discovery material that we
had, the evidence that the State would have -- was intending
to present at trial to convict him, and also the law that
applied to all of that.” (R. 61.) Trial counsel also
testified that he and co-counsel discussed with Barber the
option of pursuing lesser-included offenses as well as
presenting evidence that Barber was intoxicated at the time
of the crime. The following exchange occurred during the
evidentiary hearing:
“[Barber's Rule 32 Counsel]: Were you aware in
December 2003 that in a capital case, where specific intent
is an element of the offense, that you could have put on a
case involving voluntary intoxication to mitigate the guilt?
“[Barber's Trial Counsel]: Yes.
“[Barber's Rule 32 Counsel]: Did you consider that
in December 2003?
“[Barber's Trial Counsel]: Yes.
“[Barber's Rule 32 Counsel]: Did you discuss that
with Mr. Barber?
“[Barber's Trial Counsel]: Yes.
“[Barber's Rule 32 Counsel]: So you were aware that
was an option but you chose not to litigate the case on that
basis; correct?
“[Barber's Trial Counsel]: No. That's not
correct. Mr. Barber was aware of it and refused to even
discuss that option with us at all. And said, I will not
consider anything but a trial on the facts; that I am not
guilty.”
(R. 67.)
Barber's trial counsel repeatedly testified that Barber
would not consider any defense that required him to admit
that he killed Epps. When asked again whether he talked to
Barber about trying the case on the basis that Barber was
intoxicated when he killed Epps, trial counsel stated that
Barber “refused to go down that road and ...