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Phillip D. HALLFORD

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Incest
Number of victims: 1
Date of murder: April 13, 1986
Date of arrest: May 23, 1986
Date of birth: March 22, 1947
Victim profile: Charles Eddie Shannon, 16 (his daughter's boyfriend)
Method of murder: Shooting (.22 caliber handgun)
Location: Dale County, Alabama, USA
Status: Executed by lethal injection in Alabama on November 4, 2010
 
 
 
 
 

United States Court of Appeals
For the Eleventh Circuit

 
opinion 05-12621 opinion 07-15478
 
 
 
 
 
 

Summary:

Hallford had been sexually abusing his daughter since she was 7 years old and became angry that she was dating 16 year old Eddie Shannon. Hallford used his daughter to lure Shannon to a secluded bridge and shot him on April 13, 1986. Hallford shot Shannon once in the mouth then dragged him to the side of the bridge and shot him two more times in the head before taking his wallet and throwing him over the bridge and into the water. After the killing, Hallford made his daughter wear a necklace made of shell casings from the bullets used in the shooting.

Citations:

Hallford v. State, 548 So.2d 526 (Ala.Cr.App. 1988). (Direct Appeal)
Hallford v. State, 629 So.2d 6 (Ala.Cr.App. 1992). (PCR)
Hallford v. Culliver, 459 F.3d 1193 (11th Cir. 2006). (Habeas)

Final/Special Meal:

Hallford did not request a final meal, but instead had cheese crackers, nacho cheese Bugles, a ham-and-cheese sandwich and a Dr. Pepper from vending machines.

Final Words:

None.

ClarkProsecutor.org

 
 

Alabama Department of Corrections

Inmate: HALLFORD, PHILIP
DOC#: 00Z474
Gender: M
Race: W
DOB: 3/22/1947
Prison Holman
Received:4/17/1987
Charge: MURDER
County: DALE

 
 

Man executed for killing of daughter's boyfriend

By Bob Johnson - MontgomeryAdvertiser.com

November 5, 2010

ATMORE -- A man condemned for killing his daughter's 16-year-old boyfriend in rural south Alabama in 1987 was executed Thursday without admitting to his daughter what she called the damage he caused by the killing and abusing her for years.

Phillip Hallford was pronounced dead at 6:26 p.m. at Holman Prison and declined to say any final words. The 63-year-old Hallford spoke softly to the chaplain and guards for a few minutes as the injection was administered.

He was sentenced to die for forcing his then-15- year-old daughter to lure Eddie Shannon to an isolated area in Dale County, shooting the teen three times and throwing the body off a bridge. Trial testimony showed he was angry because they were dating.

His daughter, Melinda Hallford Powell, also said he sexually abused her and had never admitted it. Powell was at her home in North Carolina and unable to attend the execution. She said she was "relieved" to hear that Hallford was dead. "Now he's not going to hurt anybody else," she said.

Powell had said she hoped her father would admit to what he did to her and to Shannon before he died, but he didn't, only replying "no" when Warden Tony Patterson asked him if he had anything to say.

Prison officials then began to administer the injection. Lying quietly strapped to a gurney, the bald, heavyset Hallford appeared calm. He closed his eyes, stopped moving and quietly slipped away. Told that Hallford had nothing to say, Powell said, "I'm sorry to hear that."

Gov. Bob Riley refused to grant clemency and the U. S. Supreme Court rejected Hallford's final appeal just minutes before the injection.

Hallford was the 24th inmate executed since Riley became governor in 2003. That's the most during the administration of any Alabama governor since executions were resumed in the early 1980s after a court-ordered moratorium.

Powell, who was pregnant at the time of the killing, is married with three children. She said she had been sexually abused by her father and had lived "a nightmare" for years.

After he killed Shannon, she said, her father made a necklace out of the casings from the bullets that were fired at Shannon and made her wear it. "You can't imagine what it was like. I was kind of a zombie after that," Powell told The Associated Press in a phone interview Wednesday night.

AP generally does not identify victims of sexual abuse, but Powell said her account of the abuse is in court records and she had no objections. "I don't understand how someone can do the things that he's done," Powell said. "He's had a long list of excuses and denials."

Hallford spent his final hours visiting with his mother, Mertie Boyett, and other relatives. He did not request a final meal, but instead had cheese crackers, nacho cheese Bugles, a ham-and-cheese sandwich and a Dr Pepper from vending machines. Hallford gave his only possessions, including a watch and a Bible, to his mother.

Shannon's stepmother, Angelita Johns, said in a statement that Hallford's execution "is long overdue." "What Phillip Hallford did to my stepson Eddie Shannon was unforgivable," Johns said. "Eddie Shannon was an innocent 16-year-old just beginning to live his life."

Johns and Shannon's stepbrother, David Ferguson of Enterprise, witnessed the execution. "It's finally justice for my brother and we're the ones here to stand up for him," Ferguson said earlier. "I think it's been way too long. I think there may be some justice, but my biggest thing is why did it take so long?"

Alabama prison system officials said they had an adequate stock of sodium thiopental, a drug used in lethal injections that has been in short supply nationally. The shortage prompted some states to delay executions or go overseas to find the drug, which makes an inmate unconscious before other drugs cause paralysis and stop the heart.

 
 

Phillip Hallford executed for killing daughter's boyfriend

By Matt Elofson - 2.dothaneagl.com

November 05, 2010

ALABAMA DEATH ROW -- An absolute quiet filled the room overlooking the execution chamber on Thursday evening as the curtain opened for people to watch Phillip Hallford take his last breath. The family of a slain 16-year-old Dale County boy received what they called “long overdue justice” as Hallford took his last breath. Officials at Holman Correctional Facility executed the 63-year-old Hallford at 6 p.m. by lethal injection.

Hallford has been on death row for 23 years after a Dale County jury convicted him and sentenced him to death for the murder of Charles Eddie Shannon, the boyfriend of Hallford’s 15-year-old pregnant daughter, Melinda Hallford.

In the moments before his death when given the opportunity for any last words, he only replied with the word “no.” Hallford spoke briefly with Chris Summers, the chaplain for Holman Correctional Facility, along with a corrections officer, just before his death. Brian Corbett, a state Department of Corrections spokesperson, said the time of death was pronounced at 6:26 p.m.

David Ferguson, Shannon’s brother, and Angelina Johns, Shannon’s stepmother, both attended the execution. Johns said in a written statement the execution gave her some long overdue justice. “Speaking for my husband and I, we are glad justice has finally been done, and we can close this chapter,” Johns said in the statement.

Johns also said in the statement that Shannon did not deserve to lose his life at the young age of 16. “Mr. Hallford had no reason for taking this young man’s life, particularly on the same night we had his sister laying in state at a Chipley, Fla., funeral home,” Johns said in the statement. “We lost two young lives within a week. It was very devastating for our family.”

Around a dozen people watched Hallford’s execution, including his lawyer, Shannon’s family, several prison officials, several corrections officers and two members of the media. Melinda Hallford did not attend her father’s execution.

Evidence showed Hallford used his daughter to lure Shannon, her boyfriend, to a secluded bridge on April 13, 1986. Hallford shot Shannon once in the mouth then dragged him to the side of the bridge and shot him two more times in the head before throwing him over the bridge and into the water.

According to the Associated Press, trial testimony indicated Hallford had been abusive to his daughter since she was 7 years old. Court records show that after the killing, Hallford made his daughter wear a necklace made of shell casings from the bullets used in the shooting.

Corbett said Hallford did not request a last meal, but ate a ham and cheese sandwich from a vending machine. Corbett said Hallford also ate some cheese crackers and nacho cheese Bugles earlier in the day, which he washed down with a Dr. Pepper.

Two people attended the execution on Hallford’s behalf, which included his Philadelphia attorney Andrew Kantra and private investigator Glori Shettles. Corbett said Hallford had several visitors in the hours before his death, which included his mother, Mertie Boyett, his brother, Ronald Hallford and his sister-in-law, Eara Hallford, a spiritual advisor, Donald Locker, along with Shettles and Kantra. Corbett said Hallford gave several personal items he kept in his cell to his mother, which included a black watch, a Bible, an address book and a poster board painting.

Hallford became the fifth person executed in Alabama this year, and the second from the Wiregrass over the last two years. Willie McNair was executed in May 2009 for a murder in Henry County. Corbett said it was the 24th execution under Gov. Bob Riley, and likely his last as the governor of Alabama.

 
 

Phillip Hallford executed for killing daughter's boyfriend

Blog.al.com

November 04, 2010

ATMORE — Phillip Hallford, 63, who was convicted of killing his daughter's 16-year-old boyfriend was executed this evening.

He was pronounced dead at 6:26 p.m. at Holman Prison. When asked if he had any final words, he said, "No." Hallford spoke softly to the chaplain and guards for a few minutes as the lethal injection was administered, and then quietly slipped away.

Hallford lost a bid for a stay of execution by the Alabama Supreme Court just hours before he was to die by lethal injection at Holman Prison for the shooting death of Eddie Shannon at a rural south Alabama bridge. Gov. Bob Riley also refused to grant clemency. Hallford's attorney filed a final motion for a stay with the U.S. Supreme Court.

Melinda Hallford Powell, who was 15 and pregnant at the time of the killing, said her father forced her to lure Shannon to the rural site in Dale County, where he shot him to death and threw the body off a nearby bridge. Then, she said, her father made a necklace with the casings from the bullets and forced her to wear it.

Powell, who now lives in North Carolina and is married with three children, said she had been sexually abused by her father and had lived "a nightmare" for years. "You can't imagine what it was like. I was kind of a zombie after that," Powell told The Associated Press in a phone interview Wednesday night. The Associated Press generally does not identify victims of sexual abuse, but Powell said her account of the abuse is in court records and she had no objections.

According to trial testimony, Hallford was angry that his daughter was dating Shannon and, before dumping the body from the bridge, Hallford took the boy's wallet.

Hallford spent his final hours Thursday visiting with his mother, Mertie Boyett, and other relatives. He did not request a final meal, but instead had cheese crackers, nacho cheese Bugles, a ham-and-cheese sandwich and a Dr Pepper from vending machines. Hallford gave his only posessions, including a watch and a Bible, to his mother.

Shannon's stepmother, Angelita Johns, said in a statement that Hallford's execution "is long overdue." "What Phillip Hallford did to my stepson Eddie Shannon was unforgivable," Johns said. "Eddie Shannon was an innocent 16-year-old just beginning to live his life."

Alabama prison system officials said they had an adequate stock of sodium thiopental, a drug used in lethal injections that has been in short supply nationally. The shortage prompted some states to delay executions or go overseas to find the drug, which makes an inmate unconscious before other drugs cause paralysis and stop the heart.

 
 

Phillip D. Hallford

ProDeathPenalty.com

Phillip D. Hallford was sentenced to death for the robbery and murder of 16-year old Charles Eddie Shannon, the boyfriend of Hallford's daughter, Melinda.

In the early morning of April 13, 1986, Hallford forced his daughter to entice her boyfriend, Charles Eddie Shannon, to a secluded bridge. He then shot Eddie once in the roof of the mouth. While Eddie was still alive, Hallford dragged him to the side of the bridge and shot him two more times, once in the front of the left ear and once in the forehead. Hallford then threw the body over the bridge railing and into the water.

Some time after the shooting, Hallford returned to the scene of the crime to remove the blood from the bridge. The next day Hallford burned Eddie's wallet and its contents. These events were witnessed in part by Hallford's daughter and his son, who testified against him at trial. While Hallford was burning the wallet he commented that Eddie was a "cheapskate" because he said he found no money in the wallet. However, Eddie's father testified that he had given the victim money on the afternoon of his disappearance.

Eddie's badly decomposed body was discovered in the water approximately two weeks after the shooting. Hallford maintained at trial that he did not kill Eddie and that he was nowhere near the bridge when the murder occurred. During the guilt phase of the trial, Melinda described Hallford's plot to lure Eddie Shannon to him and the graphic details of the murder. Melinda was also the only witness to identify directly the wallet Hallford burned as belonging to Eddie.

Her further testimony during the penalty phase — where she was the only witness for the State — described her sexual relationship with Hallford that began when she was seven or eight years old; Melinda testified that she and her father were engaged in an incestuous relationship when she became romantically involved with Shannon and that her father was jealous of Eddie. In addition to Melinda's testimony, the jury heard testimony from Hallford's stepson, Sammy, that matched Melinda's in providing critical details tying Hallford to Eddie Shannon's murder and the robbery. Sammy — as well as Melinda — testified that he witnessed Hallford attack Eddie with a pistol and described how Sammy helped Hallford destroy evidence that could have tied Hallford to the crime. Sammy testified that on the morning after the murder — after Hallford had Sammy return to the crime scene with him to wash blood from the bridge and make sure Shannon's body was undetectable — Hallford told Sammy to build a fire in a drum outside the trailer. According to Sammy, after the fire was lit, Hallford brought out a wallet and burned its contents. Sammy testified that he saw Hallford burn an orange and white military identification card. Sammy did not read the name on the card, and Hallford's thumb obscured the card's picture. Sammy testified that Melinda was present when Hallford burned the wallet.

Eddie's step-brother, David, testified that Eddie carried a wallet in which he kept an identification card. Eddie's father, Olen Johns, who similarly described Eddie's wallet and stated that the wallet carried his military identification card, testified that he never saw his son's wallet after the murder. Melinda's testimony that Hallford burned Eddie's wallet on the morning after the murder was more specific than the other wallet-related testimony. Perhaps the most incriminating circumstantial evidence is the timing of Hallford's acts: Hallford burned a wallet containing a military identification card like Shannon's less than twelve hours after the murder occurred and after spending most of the same morning undertaking efforts to conceal the crime. Shannon's wallet was not recovered with his body.

UPDATE: Upon hearing that her father's execution date had been set, Melinda Hallford said, "Thank God. I'm so happy, I'm ecstatic." Melinda was only 15 when her father shot her boyfriend in front of her. "My father had been having sex with me and claiming I was his wife. In his perverted mind, I had an affair." About the execution, Melinda said, "“It will at least give me a sense of closure and help me not to be afraid of him anymore. I’ve been afraid my entire damn life he was going to kill me or send somebody after me to kill me. I hate myself. I hate the fact that I was ever born. I hate the fact that this person is my father. I want to kill him myself. I still have to live with the fact that a 16-year-old boy was killed because of me.” Eddie Shannon's stepbrother David Ferguson said, "It's about time. Come on now, it's been 21 years. Justice should have been given a long time ago."

 
 

Hallford v. State, 548 So.2d 526 (Ala.Cr.App. 1988). (Direct Appeal)

Defendant was convicted of capital robbery-murder before the Circuit Court, Dale County, P.B. McLaughlin, Jr., J., who imposed the death penalty pursuant to a jury recommendation. On appeal the Court of Criminal Appeals, Patterson, J., held that: (1) photograph of victim was admissible in trial; (2) defendant was not entitled to mistrial; (3) copies of search warrants were admissible during motion to suppress; (4) shotgun seized pursuant to search warrants was admissible at trial; (5) evidence was sufficient to support jury finding of capital robbery-murder; (6) testimony by defendant's daughter that she had been having sexual relationship with him was admissible during sentencing phase; (7) trial court's findings of fact in summary were supported by evidence; (8) evidence supported findings of capital robbery-murder aggravating circumstance; (9) evidence was sufficient to support finding of especially heinous, atrocious or cruel killing of victim; (10) trial court did not abuse its discretion in not allowing defendant to individually voir dire all prospective jurors; and (11) independent weighing of evidence demonstrated imposition of death penalty was not excessive. Affirmed.

PATTERSON, Judge.

Appellant, Phillip D. Hallford, was indicted on July 10, 1986, in Dale County, for the capital offense of murder committed during a robbery in the first degree, in violation of § 2(a)(2), Act No. 81-178, Ala. Acts 1981, enacted March 31, 1981.FN1 Omitting its formal parts, the indictment reads as follows: “The Grand Jury of said County charges that before the finding of this indictment that Phillip D. Hallford did intentionally cause the death of Charles E. Shannon by shooting him with a pistol and Phillip D. Hallford caused said death during the time that Phillip D. Hallford was in the course of committing a theft of billfold, the property of Charles E. Shannon, by the use of force against the person of Charles E. Shannon with intent to overcome his physical resistance or physical power of resistance, while the said Phillip D. Hallford was armed with a deadly weapon, to-wit: a pistol, in violation of Section 2(a)(2) of Act No. 81-178....” At arraignment, Hallford pleaded not guilty. On March 4, 1987, a jury found him guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-43 through -46, Code of Alabama 1975, and the jury returned an advisory verdict recommending that the penalty be death. Ten jurors recommended the death penalty and two recommended a sentence of life imprisonment without the possibility of parole.FN2 Thereafter, the trial court held another sentencing hearing, in accordance with §§ 13A-5-47 through -52, and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced Hallford to death.FN3

FN2. Section 13A-5-46(f) requires that an advisory verdict recommending death be based on a vote of at least ten jurors. FN3. The trial court's sentencing order, setting out written findings as to aggravating and mitigating circumstances and setting out written findings of fact summarizing the crime and appellant's participation in it, is attached hereto as an appendix and is made a part of this opinion.

The state's evidence, which primarily consists of the testimony of appellant's children, tended to show that, during the night of April 12 or the early morning hours of April 13, 1986, appellant used his 15-year-old daughter, Melinda Hallford, to lure the 16-year-old victim, Charles Eddie Shannon, to an isolated area near an abandoned bridge over the Choctawahatchee River in Dale County. The victim was Melinda's “boyfriend.” Appellant instructed Melinda to telephone the victim and arrange a meeting with him near the bridge. She made the call around midnight, April 12, and arranged to meet the victim as she had been instructed. Then, appellant, Melinda, and appellant's 15-year-old stepson, Sammy Joe Robbins, went to the bridge in appellant's vehicle and parked. Appellant and his stepson got out of the vehicle and hid nearby. Melinda remained in the vehicle. Around 1:00 a.m., April 13, the victim came to the vehicle and began talking with Melinda. Appellant approached the victim, turned him around and, after a brief struggle, shot him through the roof of his mouth with a .22 caliber pistol. Just after the shot was fired, the victim stated, as he slumped to the ground, “What did you shoot me for?” and appellant said, “For fucking around with somebody else's pussy.” Appellant grabbed the victim by the feet and dragged him toward the bridge. As he was being dragged, the victim was crying and saying, “Oh my God, you shot me,” and “Oh, Jesus Christ, you shot me.” At some point, the victim regained his balance, and appellant marched the victim toward the river while holding him by the hair of his head. After several minutes, two more shots were heard, and shortly thereafter appellant returned to the vehicle. Melinda, Sammy Joe, and appellant went back to their home nearby, and appellant and Sammy Joe returned before daylight to the scene with a jug of water and a brush and washed away blood spots on the bridge. After daylight, appellant and Sammy Joe again returned to the scene to see if the body of the victim had floated to the surface of the river. If it had, they intended to shoot it with the shotgun they had brought in order to sink it.

The next day, appellant built a fire in a drum in his backyard and burned the victim's wallet and its contents, which included a photograph and a military identification card. While burning the wallet, he stated to Melinda that the victim “was a cheapskate because he didn't have any money in his wallet.” He also showed her a picture of a girl he had taken from the wallet and told her that the victim had not been faithful to her. The victim's father testified that the victim had money in his wallet and that he had given his son $10 on the afternoon before his son disappeared. Appellant attempted to destroy the .22 caliber pistol by melting it down in an old tire rim with an acetylene torch. While melting the pistol, he had his 13-year-old son, Jack Hallford, act as a lookout for him and told him, “They won't know what this was,” and “They won't find no evidence.” The remains of the pistol were recovered and identified at trial by a firearms expert as a .22 caliber pistol. Appellant bored holes in the empty shell casings from the pistol, and made them into a necklace. He made Melinda wear the necklace so that she would “remember.” Appellant told his 18-year-old stepson, Cecil Wayne Robbins, shortly after the killing, that “I wouldn't have to worry about him [referring to the victim] no more,” and that “he had got rid of him.”

The victim's badly decomposed body was discovered in the river by two fishermen on April 26, 1986. An autopsy disclosed three wounds which were made by .22 caliber bullets. The bullets were recovered from the victim's head. One bullet entered the roof of the mouth, one in front of the left ear, and one in the forehead. Any of the fired bullets could have caused death. The official cause of death was “[m]ultiple gunshot wounds to the head.”

There was testimony that appellant had threatened the victim about a week before the killing by telling him that if he rode his motorcycle by appellant's house again, he would kill him. When the police investigation began to focus on appellant, after the discovery of the victim's body, appellant fled with Melinda. He was arrested in Escambia County, Florida, on May 23, 1986, and extradited to Alabama.

Appellant testified in his own behalf, denying any knowledge of the crime or even knowing the victim. He attempted to establish an alibi for his whereabouts on the night of the killing; attempted to cast suspicion on his stepson, Cecil Wayne Robbins, by claiming that he had seen him burning a bloody shirt on the day after the killing; and tried to cast doubt on the testimony of his children by claiming that they had “drug” problems and were testifying against him because they were being pressured and detained. Cecil Wayne Robbins testified that he had a bloody shirt that was bloody because appellant had stabbed him in the back.

Appellant raises ten issues on appeal.

I

Appellant first contends that the trial court erred in admitting, over his objection, a photograph of the victim, Charles E. Shannon, that had been taken approximately one month prior to the victim's death.

Angelita Johns, the stepmother of the victim, identified a photograph of the victim taken approximately one month prior to his death and testified that it was the way he looked when he disappeared. The state's offer of the photograph into evidence was objected to by appellant on the grounds that the photograph was not relevant to any issues before the court and that the purpose of its introduction was to inflame the jury. In an effort to prevent the introduction of the photograph, appellant offered to stipulate that the victim was Mrs. Johns's stepson, that he was deceased, and that he was 16 years of age. The trial court overruled appellant's objection and admitted the photograph into evidence.

“The basic question to be asked in deciding the admissibility of a photograph of a victim, just as with any other demonstrative evidence, is whether it has a reasonable tendency to prove or disprove some material fact in issue. This decision is left largely to the sound discretion of the trial judge. Of course, the decision of the trial judge is not necessarily final since his decision is reviewable to determine if there has been an abuse of discretion.” C. Gamble, McElroy's Alabama Evidence § 207.01(2) (3d ed. 1977) (footnotes omitted). It is settled law that a photograph of a deceased person taken before his death may be introduced in evidence for identification purposes, and the photograph is admissible for identification purposes even if there is no contested issue of identity of the deceased. Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965); Sanders v. State, 202 Ala. 37, 79 So. 375 (1918); Malachi v. State, 89 Ala. 134, 8 So. 104 (1889); Jolly v. State, 395 So.2d 1135 (Ala.Cr.App.1981); Luschen v. State, 51 Ala.App. 255, 284 So.2d 282 (1973); Boyd v. State, 50 Ala.App. 394, 279 So.2d 565 (1973); C. Gamble, supra, § 207.01(2).

In the case sub judice, we find no abuse of the trial court's discretion in admitting the photograph into evidence. It was admissible for the purpose of identifying the body as being that of the victim alleged in the indictment, Charles E. Shannon. We hold that the introduction of the victim's photograph was not error, even though there was no contested issue of identity of the victim.

II

Appellant next contends that the trial court erred in refusing to grant his motion for a mistrial when the state's witness and the prosecutor used the word “murder” in describing the events surrounding the death of the victim. He argues that the use of the word “murder” invaded the province of the jury and so prejudiced him that its effect could not have been eradicated from the jurors' minds.

During the direct examination of appellant's stepson, Sammy Joe Robbins, who was an eyewitness to the commission of the crime, the following exchange occurred: “MR. EMERY [prosecuting attorney]: Do you remember the night of April the 12th of 1986? “A. Yes, sir. “Q. What do you remember about that night that brings it to your attention? “A. A murder. “Q. The murder of who? “A. Eddie- “MR. KOMINOS [defense counsel]: Your, Honor, I'm going to object and ask for a mistrial. That is the ultimate question and we feel that we're due for a mistrial in this matter and I would like to be heard. “THE COURT: Take the jury back. (Jury excused). “MR. KOMINOS: The ultimate question to be decided by this jury is whether or not my client is guilty of the matters charged in the indictment. They have the sole responsibility to make that determination. We feel that the jury has been so prejudiced by the District Attorney mentioning the word “murder,” and from the witness, that that cannot be erased from the jury's minds. Therefore, we respectfully ask for a mistrial at this time. “THE COURT: Motion for a mistrial denied. “MR. KOMINOS: Then we would ask that this court give instructions to the jury instructing them that they're not to consider the words spoken by the District Attorney or the words spoken by the witness and that they're not to consider that word at all in their deliberations. “THE COURT: Bring the jury back in. (Jury returned.)

“THE COURT: Ladies and Gentlemen of the jury, this is what we classify as a homicide case. In a homicide case it means that one person is dead or has been killed and that it was done at the hands of another person. Whether or not it would be an accidental homicide or an intentional homicide or murder or a killing or what type of homicide it is, that's for you to decide. Sometimes when somebody is dead someone will say that he's murdered or killed or that type of thing. You are ultimately to have the final decision as to whether or not there was a homicide and whether or not it was an unlawful homicide, what type of unlawful homicide it is and who committed the crime, if anybody committed the crime. But that's a decision for you to make. So, if the witness classifies something as a murder, you should just disregard it and look at the facts and not the conclusions of the witnesses that they have drawn.”

The granting of a motion for a mistrial is within the sound discretion of the trial court, and its determination will not be reversed unless a clear abuse of discretion is shown. Saffold v. State, 494 So.2d 164 (Ala.Cr.App.), cert. denied, 494 So.2d 164 (Ala.1986). The granting of a mistrial is an extreme measure and should be exercised only when it is manifestly necessary to do so or when the ends of justice would otherwise be defeated. Free v. State, 495 So.2d 1147 (Ala.Cr.App.1986). A mistrial should be granted only as a last resort, as in cases of otherwise ineradicable prejudice. Where error is eradicable, a mistrial is too drastic and is properly denied. Brown v. State, 481 So.2d 1173 (Ala.Cr.App.1985); Chillous v. State, 405 So.2d 58 (Ala.Cr.App.1981).

In the instant case, the trial court, in denying the motion for mistrial, gave prompt and detailed curative instructions. In our opinion, the matter objected to was not so prejudicial that it would not have been erased from the minds of the jury. The instructions were sufficient to eradicate any possible prejudice which may have arisen. We do not believe that the prosecutor invited the witness to use the word “murder,” as suggested by appellant in his brief. Nor do we believe that the prosecutor used the word with intent to prejudice the rights of appellant. To the young witness who first used it, it was to him an understandable shorthand rendition of what he observed. See, e.g., Broughton v. Kilpatrick, 362 So.2d 865 (Ala.1978); Brown v. State; Pride v. State, 473 So.2d 576 (Ala.Cr.App.1984), cert. denied, 473 So.2d 576 (Ala.1985). We find no abuse of discretion here. The denial of the motion was proper.

III

Appellant contends that the trial court erred in admitting into evidence, at the suppression hearing, copies of two search warrants and affidavits from the State of Florida on the ground that they did not meet the requirements of the best evidence rule. These search warrants were obtained in Florida by Florida authorities for the purpose of searching appellant's motel room and automobile shortly after his apprehension in that state. The search warrants were introduced by the state at the suppression hearing for the purpose of assisting the trial court in determining the legality of the searches. An Escambia County, Florida, sheriff's deputy testified that the warrants and affidavits introduced were exact copies of the originals and that the originals had been returned to the issuing court. The trial court stated that it was necessary to admit the documents in order for it to make a determination of the admissibility of any evidence seized and that, if any questions arose as to authenticity, it would allow the state to file certified copies. The state did file certified copies, but not until after the trial and during the hearing on the motion for a new trial; however, no contention is made that there was any discrepancy between the certified copies and the ones originally introduced at the suppression hearing. Our examination discloses that they are identical.

Appellant argues that, since the copies of the search warrants and affidavits introduced at the suppression hearing were inadmissible, all evidence seized during the resulting searches should have been suppressed. The only item that was seized during the searches and introduced into evidence was a “sawed-off” shotgun found in the motel room where appellant had been arrested.

We find that the copies of the search warrants and affidavits, which were introduced at the suppression hearing and identified as exact copies of the originals by an officer qualified to make such an identification, were properly admitted. Under the circumstances of this case, the documents, being copies of government records, were admissible as an exception to the best evidence rule. C. Gamble, supra, § 218.01. See also Roynica v. State, 54 Ala.App. 436, 309 So.2d 475 (Ala.Cr.App.1974), cert. denied, 293 Ala. 772, 309 So.2d 485 (Ala.), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1975).

We note that appellant could not have been prejudiced by the use of the uncertified copies of the search warrants and affidavits by the trial court in making its decision on the motion to suppress. Appellant was able to raise a Fourth Amendment challenge to the sufficiency of the warrants, and the copies introduced and used by the trial court were identical to the originals.

IV & V

Appellant contends, in Sections IV and V of his brief, that the trial court committed reversible error by admitting into evidence, over his objection, State's Exhibit 20, which was the shotgun seized in the motel room occupied by appellant at the time of his apprehension in Pensacola, Florida. Appellant argues that the search and seizure were unlawful and bases this argument on a claim that the search warrant authorizing the search of the motel room was issued without probable cause and was based entirely upon hearsay. We do not agree with appellant's contentions.

By the time of appellant's arrest, the investigation had progressed to the point that warrants for his arrest had been issued by Alabama authorities, and a federal warrant for unlawful flight to avoid prosecution had been issued. An all points bulletin for appellant, along with a description of his automobile, had been broadcast. About 2:00 a.m., on May 23, 1986, officers of the Pensacola Police Department observed appellant's automobile parked at a Pensacola motel. The officers knocked on the door of the motel room occupied by appellant, and after some delay, Melinda Hallford came to the door. Through the open door, the officers observed appellant hiding under the bed. When asked to identify himself, he gave the officers a false name, but he was later correctly identified by Melinda. He was arrested pursuant to the federal warrant. We find the arrest proper. The officers secured the room and the automobile. Later the same day, the search warrants were obtained, and the motel room and automobile were searched.

Appellant contends that the affidavits supporting the issuance of the search warrants consisted solely of hearsay information given to the Escambia County, Florida, deputies by Walter Ford of the Dale County, Alabama, sheriff's office, and that this hearsay would not support a finding of probable cause to issue the warrants. We do not agree. Bruce Wood of the Florida sheriff's office and Walter Ford, the chief investigator in the case from Alabama, who had first-hand knowledge of the facts, went before the issuing magistrate to obtain the warrants, and both signed the affidavits, attesting to the facts set forth therein. Obviously, the issuance of the warrants was not based upon hearsay information. After examining the affidavits, we find that they reflect sufficient probable cause for the issuance of the warrants. Since the search warrants are legally proper in every respect, the seizure of the shotgun was authorized. Appellant's stepson, Sammy Joe Robbins, identified the shotgun as the one appellant had carried back to the scene of the crime on the day after the killing for the purpose of shooting the body if it had been found floating on the surface. The shotgun was properly admitted into evidence.

Futhermore, even if the issuance of the warrant was based entirely upon hearsay information provided by Ford to the Florida authorities, as appellant argues, the information would still provide sufficient facts upon which the issuing magistrate could find probable cause to issue the warrants. Observations of fellow officers participating in the same investigation are entitled to a presumption of reliability and would provide probable cause upon which to base the issuance of a search warrant applied for by one of the investigating officers. 2 W. LaFave, Search and Seizure § 3.5(a) (2d ed. 1987); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Reed, 700 F.2d 638 (11th Cir.1983); Richardson v. State, 376 So.2d 205 (Ala.Cr.App.1978), aff'd, 376 So.2d 228 (Ala.1979).

The motel room occupied by appellant was registered in the name of James Boyington. The record shows that Boyington had rented the motel room and was allowing appellant to use it. While we do not base our holding of legality of the search on consent, we note that Boyington consented to the search of the motel room.

VI & VII

Appellant contends, in sections VI and VII of his brief, that the state failed to prove all of the elements of robbery in the first degree and that, because of such failure, it was reversible error for the trial court to submit the case to the jury on the capital offense charged. He raised this issue at trial by a motion to exclude the state's evidence upon conclusion of the presentation of the state's case (which we construe as a motion for judgment of acquittal, see A.R.Crim.P.Temp. 12). In support of his contention, he argues that there was no evidence that the wallet was actually taken from the victim, that there was no evidence that the wallet was taken from the victim while he was alive, and that there was no evidence that appellant intended to rob the victim. He suggests that the wallet could have accidently fallen from the victim's pocket and have been picked up by appellant after the murder, or that the taking of the wallet by appellant occurred after the murder as a mere afterthought. Appellant contends that the evidence is insufficient to support his conviction for the capital offense of murder during the commission of a robbery under § 13A-5-40(a)(2), Code of Alabama 1975, because, he says, the evidence was insufficient to prove the commission of a robbery at the time the victim was killed.

To sustain a conviction under § 13A-5-40(a)(2) for capital robbery-murder, the state must prove beyond a reasonable doubt: (1) a “robbery in the first degree or an attempt thereof,” as defined by § 13A-8-41; (2) a “murder,” as defined by § 13A-6-2(a)(1); and (3) that the murder was committed “during” the robbery or attempted robbery, i.e., that the murder was committed “in the course of or in connection with the commission of, or in immediate flight from the commission of” the robbery or attempted robbery in the first degree, § 13A-5-39(2). Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), aff'd, 500 So.2d 68 (Ala.1986). The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional killing. Davis v. State, 536 So.2d 110 (Ala.Cr.App.1987); Magwood v. State, 494 So.2d 124 (Ala.Cr.App.1985), aff'd, Ex parte Magwood, 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). The intentional murder must occur during the course of the robbery in question; however, the taking of the property of the victim need not occur prior to the killing. Clark v. State, 451 So.2d 368 (Ala.Cr.App.), cert. denied, 451 So.2d 368 (Ala.1984). While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. Thomas v. State, 460 So.2d 207 (Ala.Cr.App.1983), aff'd, 460 So.2d 216 (Ala.1984).

“As the Alabama Supreme Court held in Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), ‘the fact that the victim was dead at the time the property was taken would not militate [against a finding] of robbery if the intervening time between the murder and the taking formed a continuous chain of events.’ Clements v. State, 370 So.2d 708, 713 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So.2d 723 (Ala.1979); Clark v. State, 451 So.2d 368, 372 (Ala.Cr.App.1984). To sustain any other position ‘would be tantamount to granting to would-be robbers a license to kill their victims prior to robbing them in the hope of avoiding prosecution under the capital felony statute.’ Thomas v. State, 460 So.2d 207, 212 (Ala.Cr.App.1983), affirmed, 460 So.2d 216 (Ala.1984).

“Although 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, see Bufford v. State, supra, O'Pry v. State, supra [642 S.W.2d 748 (Tex.Cr.App.1981) ], the question of a defendant's intent at the time of the commission of the crime is usually an issue for the jury to resolve. Crowe v. State, 435 So.2d 1371, 1379 (Ala.Cr.App.1983). The jury may infer from the facts and circumstances that the robbery began when the accused attacked the victim and the capital offense was consummated when the defendant took the victim's property and fled. Cobern v. State, 273 Ala. 547, 550, 142 So.2d 869, 871 (1962). The defendant's intent to rob the victim can be inferred where ‘[t]he intervening time, if any, between the killing and robbery was part of a continuous chain of events.’ Thomas v. State, 460 So.2d 207, 212 (Ala.Cr.App.1983), affirmed, 460 So.2d 216 (Ala.1984). See also Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Crowe v. State, 435 So.2d 1371 (Ala.Cr.App.1983); Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980); Clements v. State, 370 So.2d 708 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So.2d 723 (Ala.1979).” Connolly, 500 So.2d at 63.

These principles were fully and correctly explained to the jury, for the trial court charged the jury, in part, as follows: “To be a capital offense, the murder of the intentional killing type must have been committed during the robbery in the first degree. ‘During’ means in the course of or in connection with or immediate flight therefrom with the commission of robbery in the first degree. An accused is not guilty of a capital robbery murder where the intent to rob was formed only after the victim was killed. To sustain a conviction under the Alabama Statute for Capital Murder-Robbery, the State must prove, beyond a reasonable doubt, a robbery of the first degree or an attempt thereof as I have just defined it, and intentional murder or killing as I have just defined it, and that the murder was committed during the robbery or attempted robbery and that the murder was committed in the course of or in connection with the commission of or the immediate flight from the commission of the robbery or the attempted robbery in the first degree.

“The fact the victim is dead at the time the property is taken will not [militate against] the crime of robbery if the intervening time between the murder and the taking formed a continuous chain of events. So, the law is that the fact that the victim is dead at the time the property is taken would not prevent a jury from finding that a capital murder robbery had [been] committed if the intervening time between the murder and the taking formed a continuous chain of events.

“Although a robbery committed as a mere afterthought, and unrelated to the murder will not sustain a conviction for the capital offense of murder robbery, the question of the Defendant's intent at the time of the commission of the crime is an issue for the jury to decide. So, it's an issue for you to decide what the Defendant's intent was at the time of the commission of the crime, if you found that the Defendant is guilty of the crime.

“If you are reasonably satisfied from the evidence, beyond a reasonable doubt, that at or during the time that the attempt-that at or during the time that the offense was being committed; that is, at or during the time that the intentional type killing as I have defined it was being committed, that the Defendant had formed the intent to kill Charles Edward Shannon and dispose of his body and to take the wallet so that the body could not be easily identified, if you found that all of that happened at one time, and you believe it beyond a reasonable doubt, then you could find the Defendant guilty of a capital offense.

“.... The burden is upon the jury-if you found that the Defendant committed the killing, the burden would be upon the jury-it would be a question of fact for the jury to decide as to whether or not at the time the killing took place, whether or not the Defendant intended at that time to dispose of the body and to take the wallet or steal the wallet so that the body could not be identified. If you found all of that, then you could find the-and you found it beyond a reasonable doubt from the evidence in the case, then you could find the Defendant guilty of the capital offense of capital murder-robbery.

“On the other hand, if you're not convinced by the evidence, beyond a reasonable doubt, that the Defendant committed a crime of murder of the intentional killing type of Charles Edward Shannon, by the means alleged in the indictment, or if you're not convinced by the evidence beyond a reasonable doubt that said murder of the intentional killing type was committed during a robbery in the first degree, as I have defined it, and was committed by the Defendant, then the Defendant could not be guilty of the capital offense.”

The question is whether there was sufficient evidence presented by the state to establish a prima facie case of capital murder, more particularly, the robbery component.

After a careful review of the state's evidence presented prior to appellant's motion, we find that the jury could have reasonably inferred from the circumstances that appellant planned to kill the victim and cover up his crime by disposing of the body in such a way that it was unlikely to be found, and if found, difficult to identify. The jury could have further reasonably inferred from the evidence, that in carrying out this plan, appellant stole the victim's wallet and shoved the victim into the river; that the taking of the wallet was a part of the overall plan or scheme; and that appellant's intent to do so was formed prior to the actual killing. The evidence offered the additional reasonable inference that, from appellant's use of the term “cheapskate” when commenting on his alleged failure to find any money in the victim's wallet, he was partially motivated by the desire for pecuniary gain. The site selected by appellant for the commission of the crime, the use of his daughter to lure the victim to the site, his efforts to dispose of incriminating evidence, his checking to see if the body had floated to the surface, and the burning of the wallet with the victim's identification are facts from which the jury could have reasonably concluded that the murder and robbery were planned in advance and that appellant intended to steal the victim's wallet and identification at the time the killing took place. Thus, the state's evidence supported the conclusion that the robbery began when the attack took place and was consummated when appellant took the wallet.

Appellant argues that there was no evidence that the wallet was actually taken from the victim. Appellant's own children, who were eyewitnesses to the killing, testified in detail how appellant shot the victim and dragged him to the river. They also observed appellant burning the victim's wallet and its contents the next day and heard him commenting about the contents of the wallet. Although circumstantial, the evidence raises a strong inference that appellant took the wallet from the victim at the time he killed him and shoved him into the river. Appellant also argues that there was no evidence that the wallet was taken from the victim while he was alive. While it is true that there was no direct evidence, it does not matter here. Even if the victim were dead at the time of the taking of the wallet, that would not militate against a finding of the crime of robbery, since the intervening time between the murder and the taking of the wallet formed a continuous chain of events. See Connolly. In responding to appellant's argument that there was no evidence that appellant intended to rob the victim, we find that sufficient evidence was presented to require that the question of appellant's intent be submitted to the jury.

After a careful review of the state's evidence in the light of the principles set out for such review in Dolvin v. State, 391 So.2d 133 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); and Magwood v. State, supra, we find it sufficient to establish a prima facie case of robbery when the victim is intentionally killed. Appellant's motion to exclude the evidence was properly denied. In addition, the evidence amply supports the verdict of the jury finding appellant guilty.

VIII

Appellant contends that the trial court committed reversible error by admitting, over his objection, evidence of unrelated crimes for which he was not charged in the indictment. During the jury sentencing phase of the trial, the state recalled Melinda Hallford as a witness, and the following occurred: “Q. Melinda, last spring was Eddie Shannon your boyfriend? “A. Yes, sir. “Q. Last spring-late in 1985, did you have a sexual relationship with your father? “MR. KOMINOS [defense counsel]: Your Honor, I'm going to object. That's leading and highly prejudicial and I ask for a mistrial. “THE COURT: I overrule. Motion for mistrial denied. “MR. EMERY [prosecuting attorney]: Did you? “A. Yes, sir. “Q. Did that relationship involve sexual intercourse? “A. Yes. “MR. KOMINOS: Your Honor, I'm going to object. He's leading and this is not material to the sentencing phase of the trial. “THE COURT: I overrule your objection.”

Appellant argues that the admission of the testimony of other offenses, which he characterizes as “incest” and “sexual misconduct,” violated the general exclusionary rule which prohibits the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question. The cases cited by appellant in support of his contention discuss the general rule, but none involves the admissibility of evidence of other crimes in a sentencing hearing in a capital case.

The admissibility of evidence at the jury sentencing hearing in a capital case is governed by §§ 13A-5-45(c) and (d), Code of Alabama 1975, which state: “(c) At the sentence hearing evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to the aggravating and mitigating circumstances referred to in sections 13A-5-49, 13A-5-51 and 13A-5-52. Evidence presented at the trial of the case may be considered insofar as it is relevant to the aggravating and mitigating circumstances without the necessity of re-introducing that evidence at the sentence hearing, unless the sentence hearing is conducted before a jury other than the one before which the defendant was tried. “(d) Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the state of Alabama.”

We find the testimony that Melinda Hallford had been having an incestuous relationship with her father prior to the killing was relevant and of probative value in the sentencing aspect of the trial. It was relevant to negate any claim by appellant that he had no significant history of prior criminal activity. § 13A-5-51(1). In addition, appellant had testified during the guilty phase of the trial that he had given his children, including Melinda, a home and had taken care of them when no one else would. This testimony was before the jury for their consideration of a proper sentence. § 13A-5-45(c). Thus, the testimony of the incestuous relationship was also admissible for the purpose of negating appellant's testimony, which obviously had been offered in an effort to portray himself as a good father and therefore a person of good character. § 13A-5-52.

Accordingly, we find that the testimony of Melinda Hallford that she had been having sexual intercourse with her father, appellant, was properly admitted.

IX

Appellant contends that the trial court erred in its written finding of facts summarizing the crime and appellant's participation in it, § 13A-5-47(d). He argues that the trial court made findings which were not supported by the evidence. We do not agree. He claims that there was no evidence from which the trial court could have concluded that he took the victim's wallet and shoved or rolled him into the river; that the victim was still alive when he was shot the second and third times; or that appellant was engaged in the commission of a robbery at the time of the killing. We find that there was ample evidence from which the trial court could have reasonably inferred that appellant took the victim's wallet and shoved or rolled him into the river, that the victim was alive when shot the second and third times, and that appellant was engaged in the commission of a robbery at the time of the killing.

Appellant also contends that the trial court erred in finding, as an aggravating circumstance, that the capital offense was committed while appellant was engaged in the commission of a robbery. He relies on Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.1980), cert. denied, 382 So.2d 1175 (Ala.1980). Bufford was based on the earlier case of Keller v. State, 380 So.2d 926 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1980), which has been implicitly overruled in Ex parte Kyzer, 399 So.2d 330 (Ala.1981). Dobard v. State, 435 So.2d 1338, 1344 (Ala.Cr.App.1982), aff'd, 435 So.2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). Appellant's contention is contrary to the 1981 capital murder statute, under which he was convicted. Section 13A-5-50 provides as follows:

“The fact that a particular capital offense as defined in section 13A-5-40(a) necessarily includes one or more aggravating circumstances as specified in section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence. By way of illustration and not limitation, the aggravating circumstance specified in section 13A-5-49(4) shall be found and considered in determining sentence in every case in which a defendant is convicted of the capital offenses defined in subdivisions (1) through (4) of subsection (a) of section 13A-5-40.”

This case falls directly within § 13A-5-50, because appellant was convicted of robbery/murder under 13A-5-40(a)(2) and the aggravating circumstance was that under § 13A-5-49(4). Therefore, we find no merit to this contention.

Appellant also argues that the trial court erred in finding, as an aggravating circumstance, that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. We find no merit to this contention. The trial court found that appellant, after luring the 16-year-old boy to the isolated area near the river, shot him in the mouth, rendering him defenseless. The trial court further found that appellant then dragged and marched the helpless and pleading victim to the river, where he shot him in the head twice more and shoved him in the river after taking his wallet. These findings could reasonably be inferred from, and are consistent with, the evidence. The trial court determined that this was “an execution type slaying, evincing a cold blooded, calculated design to kill.” We agree. This court finds that a killing of the type here falls within the category of heinous, atrocious, or cruel killing. See Ex parte Kyzer; Hubbard v. State, 500 So.2d 1204 (Ala.Cr.App.), aff'd, 500 So.2d 1231 (Ala.1986); Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982), aff'd, 431 So.2d 563 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).

X

Appellant contends that the trial court erred in denying his motion for a new trial. All issues raised in the motion for new trial, except that raised in paragraph 15, have been previously addressed in this opinion and resolved adversely to appellant. The issue in paragraph 15 involves the trial court's refusal to permit individual voir dire examination of the prospective jurors. Even in capital cases, there is no requirement that a defendant be allowed to question each prospective juror individually during voir dire examination, and it is within the trial court's discretion whether to allow such a request. Bell v. State, 475 So.2d 601 (Ala.Cr.App.1984), aff'd, 475 So.2d 609 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985); Raines v. State, 429 So.2d 1104 (Ala.Cr.App.), aff'd, 429 So.2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983). The decision of the trial court in denying individual voir dire examination will not be disturbed absent abuse of that discretion. We find no abuse here.

The decision to grant or deny a motion for a new trial rests within the sound discretion of the trial court; and, on review, every presumption of correctness will be bestowed upon the decision, and it will not be disturbed absent abuse. Smiley v. State, 435 So.2d 202 (Ala.Cr.App.1983). We find no abuse of discretion in denying the motion for a new trial, and the decision should not be disturbed.

XI

In accordance with A.R.A.P. 45A, we have examined the instant record for any plain error, whether or not brought to our attention or the attention of the trial court. We have found no “plain error or defect in the proceedings,” either in the guilt phase or in the sentencing phases of the trial.

We have also reviewed appellant's sentence by the provisions of § 13A-5-53, Code of Alabama 1975. Section 13A-5-53(a) requires that, in addition to reviewing the case for any error involving the conviction, we shall also review the propriety of the death sentence. This review shall include our determination of the following: (1) whether any error adversely affecting the rights of the defendant was made in the sentence proceedings; (2) whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by us of the aggravating and mitigating circumstances indicates that death is the proper sentence; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

After appellant was convicted of the capital offense charged, a separate sentence hearing was held before the jury in accordance with §§ 13A-5-45 and -46. After hearing evidence concerning aggravating and mitigating circumstances; after being properly instructed by the trial court as to the applicable law; and after being correctly advised as to its function in reference to any finding of aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict; the jury, by a vote of ten to two, returned the following verdict: “We the jury, recommend that the defendant, Phillip D. Hallford, should be punished by death....”

Thereafter, the trial court held another hearing, in accordance with § 13A-5-47, to aid it in determining whether it would sentence appellant to death as recommended by the jury or to life imprisonment without the possibility of parole. The trial court ordered and received a written pre-sentence investigation report, as required by § 13A-5-47(b). Upon conclusion of the hearing, the trial court entered specific written findings concerning the existence or non-existence of each aggravating circumstance enumerated in § 13A-5-49 and the existence or non-existence of any mitigating circumstance in § 13A-5-51 and § 13A-5-52, as well as written findings of fact summarizing the crime and appellant's participation in it. In its findings of fact (see “Appendix”), the trial court found the existence of the following aggravating circumstances: (1) That the capital offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, § 13A-5-49(4); and (2) that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses, § 13A-5-49(8). The trial court examined the evidence for mitigating circumstances, pursuant to the requirements of §§ 13A-5-51 and -52, and found none.

Thus, the trial court found the existence of two aggravating circumstances and no mitigating circumstances. It properly weighed the aggravating circumstances against the total lack of mitigating circumstances and, finding the aggravating circumstances sufficient to support the sentence of death recommended by the jury, sentenced appellant to death.

Appellant was convicted of the offense of murder committed during a robbery in the first degree, § 13A-5-40(a)(2). This offense is, by statutory definition and designation, a capital offense. We take judicial notice that similar crimes are being punished capitally throughout this state. See, e.g., Thomas v. State, 460 So.2d 207 (Ala.Cr.App.1983), aff'd, 460 So.2d 216 (Ala.1984); Waldrop v. State, 459 So.2d 953 (Ala.Cr.App.1983), aff'd, 459 So.2d 959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985); Weeks v. State, 456 So.2d 395 (Ala.Cr.App.1983), aff'd, 456 So.2d 404 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985); Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 225 (1982). Two-thirds of the death sentences imposed in Alabama are in cases of robbery-murder. Thomas, 460 So.2d at 225.

We have carefully searched the record of both the guilt and the sentence phases of appellant's trial, and we have found no reversible error. In reviewing the sentence, we find no evidence that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. We find that the findings and conclusions of the trial court are strongly supported by the evidence. We concur in the recommendation of the jury and the verdict of the trial court that death is the appropriate sentence in this case. Our independent weighing of the aggravating circumstances, while we note the absence of mitigating circumstances, convinces us that the sentence of death is appropriate in relation to this defendant. Considering the crime committed and the defendant, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases. Accordingly, appellant's conviction and sentence of death are due to be, and they are hereby, affirmed. All Judges concur.

ON APPLICATIONS FOR REHEARING

Both appellant and appellee have filed applications for rehearing. Appellant filed his application for rehearing, with supporting brief, on June 24, 1988. He raises no new issues in this application, and all issues raised therein were fully addressed and considered by us in our opinion of June 14, 1988, affirming the conviction and sentence.

On July 13, 1988, appellant filed an “addendum” to his application, directing our attention to the recent decision of the United States Supreme Court in the case of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). He contends, in his supplemental brief, that the Court in Maynard found the aggravating circumstance that the murder was “especially heinous, atrocious or cruel” in the Oklahoma capital murder statute, Okla.Stat., Tit. 21, § 701.12(4) (1981), unconstitutionally vague under the Eighth Amendment. He argues that, due to the similarity between this aggravating circumstance in the Oklahoma statute and the aggravating circumstance in the Alabama statute, which we are concerned with here-that the capital offense was especially heinous, atrocious or cruel compared to other capital offenses, § 13A-5-49(8)- Maynard applies to the instant case and requires that we reverse and remand this cause for redetermination of the appropriate sentence.

In Maynard, the jury, the sentencing authority in Oklahoma, was instructed solely in the words of the statute, without any instructions as to what these words meant in the context of a capital crime or what facts would justify the finding of the aggravating circumstance. Furthermore, the Oklahoma appellate court did not examine the jury's finding of the aggravating circumstance in light of any limiting construction, but held only that the crime itself supported the finding. The Supreme Court of the United States held that the words of the aggravating circumstance themselves give little guidance as to what facts would be applicable and that, when the jury is given no limiting instructions and the appellate court does not declare any standard by which it is reviewing the finding, the aggravating circumstance as applied in that case is unconstitutional. The Supreme Court indicated that it was not prescribing any particular construction of the aggravating circumstance; it only required that it be limited in some meaningful way.

Maynard is, in effect, a restatement of the holding in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion), which the Court found controlling in Maynard. In Godfrey, the Court dealt with a somewhat similar aggravating circumstance, i.e., that the offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” As was the case in Maynard, the jury was merely read the statutory language with no explanatory instructions. 446 U.S. at 426, 100 S.Ct. at 1763. The Georgia Supreme Court affirmed the finding of the aggravating circumstance without discussing any standard for its review. Id. at 426-27, 100 S.Ct. at 1763-64. The United States Supreme Court reversed, holding that a capital sentence scheme must channel the sentencer's discretion by clear and objective standards and must provide a meaningful basis for distinguishing cases in which the death penalty should be imposed from those in which it should not. Id. at 427-29, 100 S.Ct. at 1764-65. The Court held that the failure to instruct the jury beyond the words of the statute was not cured by the review of the Georgia Supreme Court because, like the state appellate court in Maynard, the Georgia Supreme Court pronounced no standard for judging the existence of this aggravating circumstance.

The case at bar is distinguishable from Maynard and Godfrey. Unlike the jury in Maynard and Godfrey, the jury in the instant case was instructed on the meaning of the words of the aggravating circumstance in the context of capital sentencing. These instructions correctly followed the previously recognized limiting construction of the aggravating circumstance established by the Alabama Supreme Court in Ex parte Kyzer, 399 So.2d 330 (Ala.1981), wherein the court stated, “The aggravating circumstance listed in § 13-11-6(8) [now § 13A-5-49(8) ] was intended to apply to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.” Id. at 334. In defining the circumstances under which the aggravating circumstance could be applied, the Alabama Supreme Court expressly followed Godfrey. Id.

In this case, the trial court instructed the jury, in pertinent part, as follows:

“The law of this State provides a list of aggravating circumstances which may be considered by the jury in recommending punishment if the jury is convinced beyond a reasonable doubt from the evidence that one or any of such aggravating circumstances exists in this case. The same definitions that I gave you yesterday concerning reasonable doubt, apply to this matter also. If the jury is not convinced beyond a reasonable doubt, based upon the evidence, that one or more of such aggravating circumstances exists, then the jury must recommend that the Defendant's punishment be life imprisonment without parole, regardless of whether or not there are any mitigating circumstances. Of the list of aggravating circumstances provided by law, there are two circumstances which you may consider in this case if you are convinced beyond a reasonable doubt and to a moral certainty based upon the evidence that such circumstances do exist. The fact that I instruct you on such aggravating circumstances, or define them for you, does not mean that the circumstances or any other aggravating circumstances have been proven beyond a reasonable doubt in this matter. Whether or not any aggravating circumstances which I instruct you on or define for you have been proven beyond a reasonable doubt, based upon the evidence in this case, is a matter for you and you alone to determine.

“The aggravating circumstances which you may consider in this case, if you find from the evidence that ... [they have been proven] beyond a reasonable doubt are as follows: ... that would be that the capital offense was committed while the Defendant was engaged in or was an accomplice in the commission of or an attempt to commit or flight after committing or attempting to commit a robbery. The other aggravating circumstance that you may consider would be that the capital offense was especially heinous, atrocious or cruel compared to other capital offenses. The term ‘heinous' means extremely wicked or shockingly evil. The term ‘atrocious' means outrageously wicked and violent. The term ‘cruel’ means designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others. What is intended to be included in this aggravating circumstance are those cases where the actual commission of a capital offense is accompanied by such additional acts as to set the crime apart from the norm of capital offenses.

“For a capital offense to be especially heinous or atrocious, any brutality which is involved in it must exceed that which is normally present in any capital offense. For a capital offense to be especially cruel, it must be a conscienceless or pitiless crime which is unnecessarily torturous to the victim. All capital offenses are heinous, atrocious and cruel to some extent. What is intended to be covered by these aggravating circumstances are only those cases in which the degree of heinousness, atrociousness and cruelty [exceeds] that which would always exist when a capital offense is committed. Now, as I have stated to you before, the burden of proof is upon the State to convince each of you beyond a reasonable doubt as to the existence of any aggravating circumstances considered by you in determining what punishment is to be recommended in this case. This means that before you can even consider recommending that the Defendant's punishment be death, each and every one of you must be convinced beyond a reasonable doubt, based on the evidence, that at least one or more of the aggravating circumstances exists.”

After the jury returned an advisory verdict recommending that the penalty be death and after the trial court conducted a second sentencing hearing, the trial court found, inter alia, the following:

“The Court has considered each aggravating circumstance enumerated in Section 13A-5-49, Code of Alabama (1975), and the Court finds that the capital offense was committed while the defendant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit Robbery. The Court further finds that the capital offense in this cause was especially heinous, atrocious or cruel compared to other capital cases.

“Phillip Hallford, age 39, instructed his 15-year-old daughter to lure Eddie Shannon, age 16, to an abandoned road near a closed out bridge over the Choctawahatchee River. Based on the reasonable inference from the evidence, the defendant lured the 16-year-old boy to this area so that he could kill him in front of his daughter and stepson and dispose of the body. The defendant hid in the dark and after the deceased approached the car, he shot the deceased through the roof of his mouth. He then dragged or pulled the pleading victim along to the bridge where he shot him two more times in the head. He removed his wallet and other items that would help identify the victim and shoved him into the river, knowing that after so long the body would decompose.

“This was an execution type slaying, evincing a cold blooded, calculated design to kill. The defendant deliberately shot the victim in the roof of the mouth and after the victim was virtually defenseless, but still conscious, he shot the victim in the head two more times and threw the victim into the river to avoid later identification. The conduct of the defendant throughout this episode demonstrates conduct that is totally and senselessly bereft and devoid of any regard for human life.”

In our opinion of June 14, 1988, we found that the findings and conclusions of the trial court in reference to the existence of the two aggravating circumstances were strongly supported by the evidence. We concluded, after independently weighing the evidence, that the state had met its burden in proving the existence of the two aggravating circumstances. In reaching our conclusion in reference to the aggravating circumstance set out in § 13A-5-49(8), we applied the rule established by the Alabama Supreme Court in Kyzer. See also Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982), aff'd, 431 So.2d 563 (Ala.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983). The trial court's findings with regard to this aggravating circumstance are detailed and thorough. They reflect a correct understanding and application of the law. It is apparent that the trial judge, in weighing the evidence presented as to the aggravating circumstance that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses, was being guided by the limitations established in Kyzer and applied in Bush. This is even more apparent from a reading of the court's findings in light of its instructions to the jury, for as we have already ruled, the trial court properly and thoroughly charged the jury in reference to the law pertaining to the limitations placed upon the construction of the aggravating circumstance found in § 13A-5-49(8) by Kyzer.

Moreover, in finding that the instant killing “was an execution type slaying, evincing a cold blooded, calculated design to kill,” the trial court obviously recognized the appropriate application of the principles of Bush. The slaying in the case at bar was not an instantaneous death caused by gunfire, which the Bush court recognized to ordinarily not constitute a heinous killing. 431 So.2d at 560. Rather, appellant “deliberately [shot] a victim in the head in a calculated fashion to avoid later identification, after the victim [had] already been rendered helpless by gunshot.” Id. at 560-61. Obviously, the trial court concluded that these circumstances clearly set the crime apart from the norm of other capital offenses and met the standard of Kyzer.

We further find from the evidence that appellant used his young daughter to lure the victim to an isolated area near the river so that he could kill the victim and dispose of the body. After admonishing the victim about associating with his daughter, he shot the victim in the mouth, and while the victim was still conscious and protesting, he marched or dragged him by the hair of the head to the river, where he fired two more shots into the victim's head and threw him into the river. The evidence supports the conclusion that the victim was alive, conscious, and pleading as he was being marched to the river. One can only imagine the pain and terror which must have been experienced by this young man. We once again find this conduct to be conscienceless, pitiless, and unnecessarily torturous to the victim. We have weighed this evidence in the light of the limitations placed upon the construction of this aggravating circumstance and conclude that it satisfies the requirements of Kyzer. We find that this aggravating circumstance was also proven beyond a reasonable doubt.

Appellant seems to argue that the aggravating circumstance is unconstitutional on its face. If this is his argument, it is without merit. The aggravating circumstance is not unconstitutional on its face. Godfrey v. Georgia; Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Court in Maynard held the Oklahoma aggravating circumstance to be unconstitutional as it was applied in that case.

For the above reasons, we hold that Maynard has no application to this case. In considering appellant's application for rehearing, we have reviewed our opinion and decision of affirmance and considered appellant's briefs filed in support of his application, and we are not persuaded to alter our holding. The application for rehearing is overruled.

The application for rehearing filed by the appellee, the State of Alabama, is in the nature of a request for modification of that portion of our opinion wherein we held that the testimony of Melinda Hallford that she had been having an incestuous relationship with her father prior to the killing was relevant and of probative value in the sentencing aspect of the trial. We held it relevant on two grounds: (1) To rebut the mitigating circumstance under § 13A-5-51(1) of no significant history of prior criminal activity; and (2) to negate appellant's attempt to establish his general good character as a non-statutory mitigating circumstance under § 13A-5-52. The state calls our attention to Cook v. State, 369 So.2d 1251 (Ala.1979), wherein the Alabama Supreme Court held that only convictions can be used to negate the statutory mitigating circumstance of no significant history of prior criminal activity. We find merit in the state's application for modification in this regard, and we amend our opinion by striking therefrom that portion of the opinion which holds that the testimony of Melinda Hallford that she was having an incestuous relationship with her father was relevant to negate any claim by appellant that he had no significant history of prior criminal activity. While Cook v. State was decided under Ala.Code § 13-11-1, et seq. (repealed), Alabama's previous capital penalty statute, its holding is applicable here.

We are still of the opinion, however, that the testimony of the incestuous relationship was admissible for the purpose of negating appellant's testimony, which obviously had been offered in an effort to portray himself as a good father and, therefore, a person of good character. Thus, since the testimony is admissible for the other reason cited above, the modification of our original opinion does not affect our decision affirming the conviction and sentence.

OPINION MODIFIED AND EXTENDED; APPLICATIONS FOR REHEARING OVERRULED. All Judges concur.

APPENDIX

The State of Alabama, Plaintiff,
vs.
Phillip D. Hallford, Defendant.

In the Circuit Court of Dale County, Alabama

Case No. CC-86-251
Filed April 21, 1987

WRITTEN FINDINGS AND ORDER PURSUANT TO 13A-5-47, CODE OF ALABAMA (1975)

This the 16th day of April, 1987, being the date set for a hearing, in accordance with Sec. 13A-5-47, Code of Alabama (1975), to determine whether or not the Court will sentence the defendant, Phillip D. Hallford, to death or to life imprisonment without parole after the following verdict was rendered on the 4th day of March, 1987: “We, the Jury, find the defendant guilty of Capital Murder-Robbery as charged in the Indictment,” and after the Jury rendered the following verdict on the 5th day of March, 1987: “We, the Jury, recommend that the defendant, Phillip D. Hallford, should be punished by death”. (10-death; 2-life without parole).

And the Court having Ordered and received a written pre-sentence investigation report in accordance with law-a copy of which was duly served upon the attorney for the defendant, And the defendant, Phillip D. Hallford, being present in open court at this hearing with his attorney, the Honorable Bill Kominos, and the State being represented by the Honorable David C. Emery, District Attorney,

And evidence and argument being presented to the Court concerning the existence of aggravating and mitigating circumstances and the proper sentence to be imposed in this case, And the Court having considered all of the evidence presented at trial of this cause on March 2, 3, and 4, 1987, and the evidence presented at the sentencing hearing on March 5, 1987, and the pre-sentence investigation report and any evidence submitted in connection therewith and the evidence and argument presented at the Court's sentencing hearing on April 16, 1987, the Court finds as follows:

On April 12 or April 13, 1987, Phillip D. Hallford instructed his daughter Melinda Hallford, age 15, to call the deceased, Charles Eddie Shannon, age 16. Melinda was to arrange a meeting between herself and Eddie on an abandoned road leading to an old abandoned bridge traversing the Choctawahatchee River in Dale County, Alabama.

After the call, around 1:00 A.M. on April 13, 1986, Eddie Shannon went to the designated place to meet Melinda.

Phillip Hallford and his step-son, Sammy Joe Robbins, went with Melinda to the meeting place in Phillip Hallford's car. Phillip Hallford and Sammy Joe Robbins left the car and hid in the dark. Melinda Hallford remained in the car on the driver's side. Eddie Shannon came up to the car and began talking to Melinda. Phillip Hallford then approached Eddie, turned him around and after a brief struggle, shot Eddie Shannon through the roof of the mouth with a .22 pistol. During this confrontation, Phillip Hallford made the statement in substance as follows: “This will teach you to f ... with someone else's ass.” Hallford then dragged Eddie down to the old bridge. Sammy Joe and Melinda heard two more shots. According to the autopsy, these two shots would have been to the forehead and above the left ear. Phillip Hallford took Eddie's wallet and then rolled him into the river.

Phillip Hallford, Sammy Joe Robbins and Melinda Hallford returned home. Sammy Joe and Phillip Hallford returned to the scene later with a 5 gallon gas jug and broom and cleaned up the blood on the bridge. Later, according to the testimony of Sammy Joe, Sammy Joe and Phillip Hallford returned to the new bridge with a shotgun to see if the body was floating or visible and if so, they planned to sink it.

The Court further finds from the testimony of Melinda Hallford given at the sentencing hearing before the jury that she and her father had had sexual relations for several years and that he was jealous of her.

The Court further finds that Phillip Hallford planned to kill Charles Eddie Shannon and cover up the crime by disposing of the body in such a way so that it could not be found or identified and in so doing, he stole Eddie Shannon's wallet and shoved him into the river. The Court finds that the Robbery of the billfold was not committed as a mere afterthought, but was part of a plan to cover up the crime and the identity of the victim.

In accordance with Connally [Connolly] v. State, 500 So.2d 56 [57] ( [Ala.Cr.App.] 1985 [1986] ), and Johnson v. State, 479 So.2d 1377 ( [Ala.Cr.App.] 1985), and the evidence in the case, the Court finds that Phillip Hallford is guilty of violating Section 13A-5-40(2), that is: Murder by the defendant during a Robbery in the first degree or an attempt thereof committed by the defendant.

The defendant is guilty of intentionally causing the death of Charles Eddie Shannon by shooting him with a pistol and causing Eddie Shannon's death during the time that the defendant was in the course of committing the theft of Eddie Shannon's billfold by the use of force against Eddie Shannon with the intent to overcome Eddie Shannon's physical resistance or physical power of resistance while he was armed with a pistol.

The Court has considered each aggravating circumstance enumerated in Section 13A-5-49, Code of Alabama (1975), and the Court finds that the capital offense was committed while the defendant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit Robbery.

The Court further finds that the capital offense in this cause was especially heinous, atrocious or cruel compared to other capital cases. Phillip Hallford, age 39, instructed his 15-year-old daughter to lure Eddie Shannon, age 16, to an abandoned road near a closed out bridge over the Choctawahatchee River. Based on the reasonable inference from the evidence, the defendant lured the 16-year-old boy to this area so that he could kill him in front of his daughter and stepson and dispose of the body. The defendant hid in the dark and after the deceased approached the car, he shot the deceased through the roof of his mouth. He then dragged or pulled the pleading victim along to the bridge where he shot him two more times in the head. He removed his wallet and other items that would help identify the victim and shoved him into the river, knowing that after so long the body would decompose.

This was an execution type slaying, evincing a cold blooded, calculated design to kill. The defendant deliberately shot the victim in the roof of the mouth and after the victim was virtually defenseless, but still conscious, he shot the victim in the head two more times and threw the victim into the river to avoid later identification. The conduct of the defendant throughout this episode demonstrates conduct that is totally and senselessly bereft and devoid of any regard for human life.

The Court finds that the other enumerated aggravating circumstances are not applicable to the case.

The Court has considered each mitigating circumstance enumerated in Section 13A-5-15, Code of Alabama (1975), and any additional mitigating circumstance offered by the defendant or evident from the evidence in the case or any evidence touching on any mitigating circumstance. In so considering the enumerated mitigating circumstances, the Court finds that the defendant was convicted of Grand Larceny in 1966, violating U.S. Code, Title 18, Sec. 2313-concealing, selling and disposing of a stolen motor vehicle in 1983; that the capital offense was not committed while the defendant was under the influence of extreme mental or emotional distress; the victim was not a participant in the defendant's conduct and did not consent to it; the defendant was not an accomplice, but the actual killer; the defendant was not acting under extreme duress or under the substantial domination of another person; the defendant did appreciate the criminality of his conduct, was fully aware of what he was doing, and it was wrong, and that his capacity to conform his conduct to the requirement of law was not substantially impaired; and the defendant was 39 years old when the crime was committed. The Court finds from the evidence that there were no additional mitigating circumstances. The Court has merely tallied the aggravating or mitigating circumstances for the purpose of numerical comparison. The Court has considered all of the evidence in the case. The Court has weighed the aggravating and mitigating circumstances against each other. The Court finds that the aggravating circumstance[s] which exists outweigh the mitigating circumstance which exist [sic]. And the Court further has considered the recommendation of the Jury contained in its advising verdict.

And the Court having considered all of the above, finds that the defendant, Phillip D. Hallford, should be sentenced to death and is hereby sentenced to death.

IT IS THEREFORE ORDERED AND ADJUDGED by the Court that the Warden of the William C. Holman Unit of the prison system at Atmore, Alabama, or such other officer who is authorized by law shall, at any time before the hour of sunrise, on Tuesday, the 26th day of May, 1987, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of Phillip D. Hallford, a current of electricity of sufficient intensity to cause his death ... until the said Phillip D. Hallford be dead.

IT IS FURTHER ORDERED by the Court that the Clerk of this Court shall issue the necessary warrant for the execution of said defendant as required by law.

And thereupon the defendant gave notice of appeal and moved the Court to suspend execution of the sentence pending an appeal. IT IS THEREFORE ORDERED AND ADJUDGED that execution of the sentence in this case be and the same is hereby suspended pending an appeal.

AND IT IS FURTHER ORDERED AND ADJUDGED that the Sheriff of Dale County be and is hereby ORDERED to transport the said Phillip D. Hallford to the State Prison System there to be held pending an appeal in this case.

 
 

Hallford v. State, 629 So.2d 6 (Ala.Cr.App. 1992). (PCR)

Defendant was convicted of capital murder. The Court of Criminal Appeals, 548 So.2d 526, affirmed. On certiorari review, the Alabama Supreme Court, 548 So.2d 547, affirmed. Defendant petitioned for postconviction relief. The Dale Circuit Court, Ben McLauchlin, J., denied petition. On appeal, the Court of Criminal Appeals, Taylor, J., held that: (1) several issues raised were procedurally barred; (2) trial court independently evaluated each allegation of petition, even though it stated it was adopting proposed opinion and order drafted and filed by state; and (3) trial counsel was not ineffective for various reasons asserted. Affirmed.

TAYLOR, Judge.

The appellant, Phillip D. Hallford, appeals from the denial of his petition for post-conviction relief under Rule 32, A.R.Crim.P. The appellant was convicted of murder made capital because it was committed during the course of a robbery. § 13A-5-40(a)(2), Code of Alabama 1975. He was sentenced to death by electrocution. We affirmed his conviction in Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), after searching the record for plain error. Rule 45A, A.R.App.P. The Alabama Supreme Court affirmed, Ex parte Hallford, 548 So.2d 547 (Ala.1989), and the United States Supreme Court denied certiorari review in Hallford v. Alabama, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989). The current appeal is a result of the denial of his petition collaterally attacking the appellant's conviction and sentence of death.

The state's evidence at the guilt phase of the appellant's trial tended to show that in the early morning of April 13, 1986, the appellant forced his daughter to entice her boyfriend, Charles Eddie Shannon, to a secluded bridge. He then shot Shannon once in the roof of the mouth. While Shannon was still alive, Hallford dragged him to the side of the bridge and shot him two more times, once in the front of the left ear and once in the forehead. The appellant then threw the body over the bridge railing and into the water.

Sometime after the shooting, the appellant returned to the scene of the crime to remove the blood from the bridge. The next day the appellant burned the victim's wallet and its contents. These events were witnessed in part by the appellant's daughter and his son, who testified against him at trial. While the appellant was burning the victim's wallet he commented that the victim was a “cheapskate” because he said he found no money in the wallet. However, the victim's father testified that he had given the victim money on the afternoon of his disappearance. The victim's badly decomposed body was discovered in the water approximately two weeks after the shooting.

The appellant maintained at trial that he did not kill the victim and that he was nowhere near the bridge when the murder occurred.

On appeal from the denial of his petition for post-conviction relief, the appellant raises several issues that are procedurally barred from our consideration. See procedural default grounds of Rule 32, A.R.Crim.P., which are applied with equal force to collateral proceedings on a death penalty case. Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992). We will address those issues that are not procedurally barred from our review.

I

The appellant initially argues that the trial court's judgment is entitled to no deference on appeal because the court adopted the proposed opinion and order drafted by the State and failed to independently assess the appellant's contentions. We do not agree. The record contains a proposed opinion and order recommended by the State. The record also contains the judgment and order of the trial court. In the court's order, the following statement appears: “The Court hereby adopts the opinion and order filed by the State, marked exhibit ‘A’ and incorporated herein as set out in detail as the judgment of the Court. The adoption of this order is based on the Court's own evaluation of the evidence and law in the case.” (Emphasis added.)

Two months after the proposed opinion and order were filed by the state, the trial court issued its opinion and order denying the petition. The court's six-page opinion and order, though stating that it adopted the state's opinion and order, evaluated each allegation raised by the appellant.

As this court stated in Hubbard v. State, 584 So.2d 895, 900 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1041, 112 S.Ct. 896, 116 L.Ed.2d 798 (1992): “ ‘[E]ven when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.’ Anderson v. Bessemer City, North Carolina, 470 U.S., 564, 572, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 527 (1985). See also United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (verbatim findings are not to be summarily rejected and will stand if supported by the evidence); Weeks v. State, 568 So.2d 864 (Ala.Cr.App.1989), cert. denied, Weeks v. Alabama, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990) (issue discussed in dicta); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990) (trial court's findings of fact and conclusions of law were not clearly erroneous and adoption of findings and conclusions was proper).” See Williams v. State, 627 So.2d 985 (Ala.Cr.App.1991). See also Thompson, supra.

We do not have a situation here where the trial court merely adopted verbatim the proposed order of the State. It is clear from the trial court's order denying the petition that the trial court independently evaluated each allegation and denied the petition.

II

The majority of the appellant's allegations in his petition concern the performance of his trial counsel. The right to counsel as guaranteed by the Sixth Amendment to the United States Constitution encompasses the right to “effective assistance of counsel.” Browning v. State, 607 So.2d 339, 340 (Ala.Cr.App.1992). Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980).

To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances.... ‘[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.” Duren v. State, 590 So.2d 360, 362 (Ala.Cr.App.1990), aff'd 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).

When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.

“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 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.Cr.App.1987).

Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. “Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable....” Lawley, 512 So.2d at 1372. 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. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991).

The appellant contends that his counsel performed ineffectively in advising him to testify at the guilt stage, thereby opening the door for testimony concerning his incestuous relationship with his daughter, the victim's girlfriend, at the penalty phase.

At the evidentiary hearing on the appellant's petition, the appellant's trial counsel testified that he advised the appellant to testify because he believed that all jurors liked to hear the accused's side of the story. The final decision of whether to testify was left to the appellant, who chose to take the stand and to testify in his own behalf. Trial counsel stated that by questioning the appellant about his relationship with his two children and about the appellant's disapproval of some of the children's conduct, he hoped to show the jury that because of the strict discipline he imposed and because of the appellant's disapproval of his children's conduct, the children had conspired to testify against him. This was a strategic choice made by appellant's counsel, which was consistent with the appellant's defense at trial-that he was not involved in the killing. After reviewing the overwhelming evidence against the appellant and the options available to counsel, we cannot say under these circumstances that counsel's conduct was deficient.

The appellant also argues that his counsel rendered ineffective assistance in not requesting a limiting instruction on the evidence of his incestuous relationship with his daughter. He maintains that such an instruction should have been given because the evidence was admissible only to rebut the appellant's testimony at the guilt phase. The appellant maintains that because such an instruction was not given, the jury could have considered the incestuous relationship when determining whether the crime was “especially heinous, atrocious or cruel.” As the state correctly argues in its brief, the trial court thoroughly instructed the jury on the aggravating circumstances. Furthermore, this court on direct appeal reviewed the court's instructions and found no plain error. A finding of no plain error is one factor to consider when assessing the performance of trial counsel. Taking into account the facts of this case, we cannot say that counsel's performance was ineffective for failing to request such a limiting instruction.

The appellant next argues that his trial counsel rendered ineffective assistance of counsel in failing to present mitigating evidence at the penalty phase of the proceedings. The appellant's defense was that he did not commit the crime. The strategy of appellant's counsel at the penalty phase was consistent with the appellant's defense. Counsel's strategy at the penalty phase of the proceedings was to plead for mercy. Trial counsel put the appellant's mother and the appellant on the stand so that they both could plead for the appellant's life. He considered offering other evidence but decided against it. Trial counsel was not unfamiliar with the appellant; he had represented him in other proceedings before this capital murder trial. This is another instance of a tactical choice made by counsel, one as to which this court will accord a “strong presumption of correctness.” Duren, 590 So.2d at 366. Counsel's decision not to present other evidence in mitigation, given the overwhelming evidence against the appellant and the circumstances of the case, was a tactical decision and did not amount to ineffective assistance of counsel.

The appellant next argues that his counsel's performance was ineffective because counsel failed to assure that the opening and closing arguments of counsel would be transcribed into the record. The record reflects that before trial the appellant's counsel moved to have the arguments of counsel recorded and made a part of the record. The trial court, however, denied the motion and stated that when an objection was made, the relevant part of the statement objected to would be recorded along with the objection.

The appellant was tried in March 1987. At that time, § 12-17-275, Code of Alabama 1975, which specifies the duties of court reporters, stated that the reporter should take full stenographic notes of all proceedings except arguments of counsel. In September 1987, § 12-17-275 was superseded by the adoption of Rule 21, A.R.Crim.P.Temp., which provided for the transcription of arguments of counsel in cases involving the death penalty. The actions of the appellant's trial counsel were consistent with the law at the time of the appellant's trial.

The appellant has two main arguments concerning the statements made by the prosecution in its remarks to the jury. He argues that the prosecution improperly commented on the impact of the victim's death on the victim's family. To the extent that the appellant's argument focuses on Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), we note that the United States Supreme Court recently in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), specifically overruled this line of cases dealing with statements made by counsel concerning the impact of the death on the victim's family.

The appellant's second argument regarding closing remarks made by the prosecution is that the prosecution downplayed the jury's function by stating that whether or not it voted to sentence the appellant to death, its vote was only a recommendation to the trial court. We have consistently held that no reversible error occurs when the trial court instructs the jury that its penalty phase verdict is an advisory verdict. White v. State, 587 So.2d 1218 (Ala.Cr.App.1990), aff'd, 587 So.2d 1236 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992).

Furthermore, evidence at the evidentiary hearing as to what was said during the opening and closing arguments was contradictory. Several jurors testified that they did not remember trial counsel making any of the complained of remarks to the jury. Factually, this issue was in dispute and was thus decided adversely to the appellant when the trial court denied the petition in this regard. We will accord its ruling great deference on appeal.

The appellant next argues that his counsel's conduct was ineffective in failing to request a jury instruction on the aggravating circumstance that the murder was “especially heinous, atrocious or cruel,” § 13A-5-49(8), Code of Alabama 1975. This court in its original opinion thoroughly discussed the trial court's instructions on this aggravating circumstance and found that the instructions were sufficient. Having found that the instructions were sufficient in Hallford, 548 So.2d at 543, we conclude that the issue of whether counsel's performance was ineffective for not objecting to the instructions is without merit.

The appellant also argues in regard to this aggravating circumstance that his counsel rendered ineffective assistance by not forcing the prosecution to present evidence of other capital murder cases so the jury could compare whether the circumstances in this case were similar to those in other cases or whether this one was “especially heinous, atrocious or cruel.” This argument was specifically rejected by this court in Ex parte Bankhead, 585 So.2d 112 (Ala.1991), thus counsel's performance was not ineffective in failing to advance it.

The appellant next argues that his counsel's performance was ineffective in failing to make a Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), objection to the trial court's instruction on reasonable doubt. The appellant was tried and convicted of capital murder in 1987, approximately three years before Cage was released. We cannot say that counsel's performance was deficient for failing to forecast changes in the law. Duren, supra.

The appellant next contends that his trial counsel's performance was deficient because he did not question the prospective jurors about whether they would automatically sentence the appellant to death if he was found guilty. Trial counsel thoroughly questioned the prospective jurors about their ability to impartially decide the case before them. He did not specifically ask the veniremembers whether they favored the death penalty. As the State correctly argues, this court has held that no plain error occurs when the trial court does not question the veniremembers on whether they are in favor of the death penalty. Henderson v. State, 583 So.2d 276 (Ala.Cr.App.1990), aff'd, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992). Under these circumstances, we cannot say that counsel's performance prejudiced the appellant.

The appellant next lists several places in the trial court's instructions to the jury, both in the guilt and the penalty phases of this trial, where he contends his counsel should have objected. As stated previously, this court on direct appeal reviewed the entire record for plain error and found none. We hold that counsel did not render ineffective assistance by failing to object to the court's oral charge to the jury.

The appellant's last contention dealing with the performance of his trial counsel is that his counsel's performance was deficient in failing to object to the contents of the pre-sentence report. The contents of the report were reviewed by this court on direct appeal under the plain error doctrine. Having found no plain error, we hold that counsel did not render ineffective assistance of counsel by failing to object to the contents of the report.

III

The appellant next argues that Alabama's statutory scheme for compensating attorneys, § 15-12-21(d), Code of Alabama 1975, denied him the right to effective assistance, due process and equal protection. Section 15-12-21(d) provides, in pertinent part: “... In cases where the original case involves a capital offense or a charge which carries a possible sentence of life without parole, the limits shall be $1,000.00 for out-of court work, plus payment for all in-court work....”

This statute has withstood constitutional attack. The Alabama Supreme Court in Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985), addressed all three constitutional issues concerning Alabama's statutory scheme for compensating attorneys in capital cases and determined the issues adversely to the appellant. The Alabama Supreme Court stated: “These contentions are made on the premise that lawyers will not provide effective assistance unless paid a certain amount of money. But the legal profession requires its members to give their best effort in ‘advancing the “undivided interest of [their] client[s].” ’ Polk County v. Dodson, 454 U.S. 312, 318-19, 102 S.Ct. 445, 449-50, 70 L.Ed.2d 509 (1981). This Court, in Sparks v. Parker, 368 So.2d 528, 530 (Ala.1979), quoted the New Jersey Supreme Court as follows: “ ‘We know of no data to support a claim that an assigned attorney fails or shirks in the least the full measure of an attorney's obligations to a client. Our own experience, both at the bar and on the bench, runs the other way. A lawyer needs no motivation beyond his sense of duty and his pride. [ State v. Rush, 46 N.J. 399, 405-07, 217 A.2d 441, 444-45 (1966).]’ ” Grayson, 479 So.2d at 79-80. (Emphasis supplied.)

IV

The appellant next argues that his counsel's performance was ineffective because he had a conflict of interest that affected his performance. Specifically, he contends that his attorney was negotiating a contract on behalf of the appellant with a production company for an option to dramatize the appellant's version of the facts of the case. “For counsel to be so ineffective in a conflict of interest context that an accused has been denied his Sixth Amendment right to counsel, counsel must be hampered by an ‘actual conflict of interest.’ Ex parte Parker, 704 S.W.2d 40, 41 (Tex.Ct.App.1986); Baty v. Balkcom, 661 F.2d 391 (5th Cir.1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982) ... To prove that counsel was hampered by an actual conflict of interest, the appellant must show inconsistent interests.” Browning, 607 So.2d at 342.

The appellant's trial attorney stated the following at the evidentiary hearing: “I did not get myself involved in any kind of negotiations about this proposed movie or this production. I know that it's a special field of law that involves itself with contracts and productions of movies and I'm not familiar with any of that. I didn't involve myself in any of that.”

The trial court determined after hearing the testimony that this claim of a conflict of interest was factually inaccurate. The trial court's ruling in this regard is supported by the evidence presented at the evidentiary hearing. We will accord its ruling great deference on appeal.

V

Last, appellate counsel makes 17 arguments in a 2-page footnote at the end of his brief. He gives no statement of why these arguments should be reviewed; he merely cites a laundry list of arguments that he states in his brief are too numerous to address. As Judge Patterson stated in Haney v. State, 603 So.2d 368, 401 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), “This activity smacks of ‘sandbagging,’ which has been strongly condemned by the Supreme Court in Murray v. Carrier, 477 U.S. 478 [106 S.Ct. 2639, 91 L.Ed.2d 397] (1986).” In fact, in oral arguments before this court, appellate counsel candidly admitted that he raised these issues in a footnote so that he would not be procedurally barred from raising them in a federal habeas corpus proceeding.

This court would be correct in refusing to address these issues for the reasons stated in Rule 28(a)(5), A.R.App.P. This rule states in pertinent part: “The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relief on....”

However, because of the nature of this case, we have chosen to address the issues raised by the appellant in his footnote. The appellant argues that the jury instructions that the court gave or those that it failed to give violated his constitutional rights. This court in its opinion on direct appeal reviewed the entire record of the appellant's trial for plain error. Rule 45A, A.R.App.P. Had we found any questionable instructions or the failure to give any necessary instructions, this court would have reversed the judgment and remanded the cause for a new trial. The jury instructions have been reviewed and determined to be sufficient under the plain error doctrine.

The appellant next contends that numerous statements made by the district attorney resulted in the violation of his constitutional rights. This issue was addressed previously in this opinion.

The appellant next argues in his footnote that the voir dire examination of the prospective jurors violated his constitutional rights. We have addressed this issue in part previously in this opinion. We have also reviewed this allegation and find no error.

The appellant next argues that the use of the offense of robbery as an aggravating circumstance to partially justify the imposition of the death penalty violated his constitutional rights. This issue was addressed in our opinion on direct appeal and determined adversely to the appellant.

The appellant also argues that his constitutional rights were violated because, he says, he was not given statements made by the prosecution's witnesses. According to Rule 16.1(e), A.R.Crim.P., statements made by witnesses are not discoverable. No constitutional violation occurred here.

The appellant next argues that his sentence to death was excessive and disproportionate to the crime charged. As required by § 13A-5-53(b), this court in our opinion on direct appeal addressed this issue and determined that the appellant's sentence was neither excessive nor disproportionate. Hallford.

The appellant's next footnote argument is that Alabama's rule of allowing evidence presented at the guilt stage of the proceedings to be considered by the jury when determining the sentence violates his constitutional rights. We have reviewed this issue and determine it adversely to the appellant.

The appellant's next argument is that the prosecution made prejudicial comments related to the impact of the victim's death on the victim's family. We have addressed this issue previously in this opinion.

The appellant next contends that his sentence to death violates the United States Constitution and the laws and the constitution of the State of Alabama. The death penalty has consistently withstood constitutional attack. Williams v. State, 627 So.2d 985 (Ala.Cr.App.1991); Harrell v. State, 470 So.2d 1303 (Ala.Cr.App.1984), aff'd, 470 So.2d 1309 (Ala.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985); Wright v. State, 494 So.2d 726 (Ala.Cr.App.1985), aff'd, 494 So.2d 745 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 183 (1987).

The appellant next argues that his counsel's performance was deficient in the way he pursued the appellant's Fourth Amendment claims on appeal. The appellant's Fourth Amendment claims were thoroughly reviewed and addressed by this court in Hallford, supra, and were decided adversely to the appellant.

The appellant also argues that his counsel performed ineffectively in that he did not present evidence at the penalty phase of the trial regarding the aggravating circumstance that the crime was especially heinous, atrocious, or cruel when compared to other capital offenses. We have discussed this issue earlier in this opinion and found that counsel's performance was not ineffective in this regard.

The appellant also contends that his trial counsel's performance was ineffective in failing to present an effective defense. An effective defense does not necessarily result in acquittal. We cannot view the conduct of trial counsel using hindsight. Given the overwhelming evidence of the appellant's guilt, we conclude that the strategic choices made by appellant's trial counsel did not constitute ineffective assistance of counsel.

The appellant also argues that his trial counsel's performance was deficient in failing to investigate the circumstances of the crime and in failing to determine whether evidence existed supporting alternative causes of the victim's death. A review of the evidentiary hearing shows that appellant's trial counsel adequately inquired into the facts of the case and chose a defense to develop at trial. Counsel's performance was not deficient in this regard. <_P>The appellant next argues that counsel's performance was deficient in failing to seek a change of venue. Appellant's trial counsel testified at the evidentiary hearing that after he had questioned the prospective jurors about their exposure to the publicity surrounding this case he felt that there were no grounds for a change of venue. There was no evidence presented tending to prove that the appellant could not have received a fair trial in the county in which he was tried. Counsel's performance was not deficient in this regard.

Last, the appellant argues that he is entitled to a new trial based on newly discovered evidence pointing to his innocence. The appellant's son testified at trial that he had seen the appellant attempt to melt the gun used in the murder. At the evidentiary hearing, the appellant's son stated that he did not see the appellant melt the gun. The trial court, when deciding this issue, faced a credibility question. It chose to believe that the appellant's son was telling the truth at trial and not at the evidentiary hearing. We accord the trial court's ruling deference. The trial court was in a better position than this court to rule on this question because the trial judge was able to observe the demeanor of the witness. Furthermore, the appellant has failed to meet the test to obtain a new trial based on perjured trial testimony. Ex parte Frazier, 562 So.2d 560 (Ala.1989).

The trial court's denial of the appellant's petition for post-conviction relief under Rule 32, A.R.Crim.P., was correct. For the foregoing reasons, the judgment in this cause is due to be affirmed.

 
 

Hallford v. Culliver, 459 F.3d 1193 (11th Cir. 2006). (Habeas)

Background: Following affirmance of state conviction and death sentence for murder committed in the course of a robbery, 548 So.2d 526, and denial of state postconviction relief, 629 So.2d 6, petitioner sought federal habeas corpus relief. The United States District Court for the Middle District of Alabama, No. 95-01413-CV-CSC, Charles S. Coody, Chief United States Magistrate Judge, 379 F.Supp.2d 1232, denied relief, and petitioner appealed.

Holdings: The Court of Appeals held that: (1) petitioner could not demonstrate prejudice that would excuse procedural default of his Brady claim; (2) trial counsel's presentation of petitioner's testimony during guilt phase was reasonable even if it allegedly opened door to testimony of petitioner's daughter, during penalty phase, regarding incestuous relationship between petitioner and daughter; (3) counsel's failure to request limiting instruction as to incest evidence was not ineffective assistance of counsel; (4) counsel's decision to present only testimony of petitioner's mother as mitigating evidence in penalty phase was reasonable; and (5) evidence supported aggravating circumstance that offense was heinous, atrocious, or cruel. Affirmed.

PER CURIAM:

Phillip D. Hallford appeals the denial of his 28 U.S.C. § 2254 petition challenging his conviction and death sentence. Hallford argues that he suffered prejudice in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that his trial counsel was ineffective during the penalty phase, and that the evidence was legally insufficient to support the “especially heinous, atrocious, or cruel” aggravating circumstance. We now affirm Hallford's conviction and sentence.

I. Background

Hallford was convicted of the capital offense of murder committed during the course of a robbery in violation of Ala.Code § 13A-5-40(a)(2). Hallford's victim was 16-year old Charles Eddie Shannon, the boyfriend of Hallford's daughter, Melinda. The Alabama Court of Criminal Appeals summarized the facts of the murder-robbery this way:

The state's evidence at the guilt phase of [Hallford's] trial tended to show that in the early morning of April 13, 1986, [Hallford] forced his daughter to entice her boyfriend, Charles Eddie Shannon, to a secluded bridge. He then shot Shannon once in the roof of the mouth. While Shannon was still alive, Hallford dragged him to the side of the bridge and shot him two more times, once in the front of the left ear and once in the forehead. [Hallford] then threw the body over the bridge railing and into the water.

Sometime after the shooting, [Hallford] returned to the scene of the crime to remove the blood from the bridge. The next day [Hallford] burned the victim's wallet and its contents. These events were witnessed in part by [Hallford's] daughter and his son, who testified against him at trial. While [Hallford] was burning the victim's wallet he commented that the victim was a “cheapskate” because he said he found no money in the wallet. However, the victim's father testified that he had given the victim money on the afternoon of his disappearance. The victim's badly decomposed body was discovered in the water approximately two weeks after the shooting. [Hallford] maintained at trial that he did not kill the victim and that he was nowhere near the bridge when the murder occurred. Hallford v. State, 629 So.2d 6, 7-8 (Ala.Crim.App.1992).

The jury convicted Hallford and, by a 10-2 vote, recommended that Hallford receive the death penalty based on two aggravating circumstances: (1) that the murder occurred during the commission of a robbery, and (2) that it was “especially heinous, atrocious, or cruel.” The trial court sentenced him to death. The Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Hallford's conviction and sentence on direct appeal. Hallford v. State, 548 So.2d 526 (Ala.Crim.App.1988), aff'd, 548 So.2d 547 (Ala.1989), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989).

Hallford filed a motion for state post-conviction relief pursuant to Ala. R.Crim. P. 32. The trial court denied post-conviction relief, and the Alabama Court of Criminal Appeals affirmed the denial. Hallford v. State, 629 So.2d 6 (Ala.Crim.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994). Hallford then filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. The district court denied his petition, and Hallford appeals.FN1

FN1. By the parties' consent, the federal post-conviction proceedings were conducted by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. The Magistrate Judge entered the final judgment for the United States District Court for the Middle District of Alabama. To be clear, we refer to the Magistrate Judge's findings and decisions as those of the district court.

A. Facts for the Brady Claim

Although the State presented several witnesses, Hallford's daughter, Melinda, was perhaps the most incriminating single witness. During the guilt phase of the trial, Melinda described Hallford's plot to lure Shannon to him and the graphic details of the murder. Melinda was also the only witness to identify directly the wallet Hallford burned as Shannon's. Her further testimony during the penalty phase-where she was the only witness for the State-described her sexual relationship with Hallford that began when she was seven or eight years old; Melinda testified that she and her father were engaged in an incestuous relationship when she became romantically involved with Shannon.

The gravamen of Hallford's Brady claim is that Melinda testified pursuant to a plea agreement of which Hallford's trial counsel was never made aware and about which the jury never learned. The prosecutor initially sought to charge Melinda as an adult and prosecute her for intentional murder along with Hallford. The lead investigator in the case, Walter Ford, found Melinda initially uncooperative; before her arrest Melinda was reluctant to speak with Ford, and she denied having sexual contact with Shannon, calling Shannon to the bridge, or being with Shannon at the bridge where he was killed. But Melinda did cooperate in the investigation after she struck a plea agreement in which she agreed to testify against Hallford in exchange for the prosecutor's agreement not to prosecute her as an adult.FN2 The plea agreement was never memorialized in writing.

FN2. Melinda pleaded guilty to juvenile delinquency based on a charge of criminally negligent homicide and served no more than 6 weeks in a juvenile facility.

Twice before trial, Hallford's trial counsel requested all exculpatory Brady material. But at no time before trial did the State disclose the plea agreement.FN3 As the district court wrote, “the jury heard no testimony during either the guilt or penalty phases of Hallford's trial that Melinda was testifying pursuant to a plea agreement or that Melinda had originally been charged with the intentional murder of Shannon.”

FN3. The State explains this discrepancy as the result of a prosecutorial staffing change. The assistant district attorney who ratified Melinda's plea agreement left the prosecutor's office before the trial, and the newly elected district attorney-who took office shortly before trial-was never informed about the verbal agreement. No evidence shows that the State intentionally failed to disclose this information.

Despite two requests, the State also failed to disclose Melinda's plea agreement to Hallford's counsel during the state post-conviction proceedings. The State advised Hallford's state post-conviction counsel that all information had been disclosed. Yet nothing in counsel's records disclosed the existence of the plea agreement. Hallford included a general Brady claim in his petition for state post-conviction relief, but Hallford failed to argue the claim or include it in his appeal to the Alabama Court of Criminal Appeals. Later, in Hallford's federal section 2254 proceedings, the district court concluded Hallford's Brady claim was procedurally defaulted. And although the district court found cause for the procedural default, the court concluded Hallford did not suffer sufficient prejudice to excuse the default.

B. Facts for the Ineffective Assistance Claim

During the guilt phase of the trial, Hallford testified that he disapproved of certain of his children's acts such as “smoking dope” and that he was a strict disciplinarian. Because Hallford denied committing the murder, he offered this “good father” explanation to suggest a motive for his children's testimony against him. But this “good father” testimony made it possible for the State to present, during the penalty phase, Melinda's testimony about her incestuous relationship with Hallford.

At the penalty phase, Hallford presented only his mother's testimony in which she pleaded for Hallford's life. Hallford's trial counsel-who had previously represented Hallford on unrelated matters-considered but decided not to present psychological or personal background testimony.

II. Standard of Review

Hallford filed his section 2254 petition before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This case is accordingly governed by pre-AEDPA law. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997) (concluding that AEDPA provisions apply “only to cases filed after [AEDPA] became effective”). Under pre-AEDPA law, we review the district court's factual findings for clear error. Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir.2001). The state court's findings of fact generally are accorded a presumption of correctness. Hardwick v. Crosby, 320 F.3d 1127, 1158 (11th Cir.2003). But questions of law and mixed questions of law and fact are not subject to the same presumption. Id. at 1159.

III. Brady Claim

Hallford claims in his section 2254 petition that he suffered prejudice when the State failed to disclose its plea agreement with Melinda, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But Hallford abandoned this Brady claim during the state post-conviction proceedings. The district court accordingly concluded that Hallford's Brady claim was procedurally defaulted.FN4

FN4. Hallford's Brady claim was procedurally defaulted under Alabama's procedural rules. When pursuing state post-conviction relief, Hallford did not present his Brady claim to the Alabama Court of Criminal Appeals. “Claims presented in a Rule 32 petition but not pursued on appeal are deemed to be abandoned.” Boyd v. State, 913 So.2d 1113, 1145 (Ala.Crim.App.2003). And failure to present the claim in state court leads to the claim being procedurally defaulted in federal court. See Collier v. Jones, 910 F.2d 770, 772 (11th Cir.1990) (“[W]hen a petitioner has failed to present a claim to the state courts and under state procedural rules the claim has become procedurally defaulted, the claim will be considered procedurally defaulted in federal court.”)

But Hallford's procedural default may be excused if he can show cause for the default and prejudice resulting from his failure to raise the claim. Johnson, 256 F.3d at 1171 (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986)).FN5 To prove cause, Hallford must show that “some objective factor external to the defense impeded counsel's efforts” to raise the Brady claim in state court. Murray, 106 S.Ct. at 2645. To prove prejudice, Hallford “must show ‘not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Johnson, 256 F.3d at 1171 (quoting United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original)).

FN5. Hallford may also circumvent the procedural bar by showing that failure to hear his claim would result in “a fundamental miscarriage of justice.” Johnson, 256 F.3d at 1171 (citing Murray, 106 S.Ct. at 2649). But this exception is “exceedingly narrow in scope,” id., and inapplicable to this case.

The district court concluded that Hallford showed cause for his procedural default but that he did not sufficiently demonstrate prejudice. Because we conclude that Hallford cannot demonstrate prejudice, we assume without deciding that Hallford has demonstrated sufficient cause to excuse his default.

Hallford contends he suffered prejudice from the State's failure to disclose Melinda's plea agreement because-as the only witness to give direct evidence that the wallet Hallford burned was Shannon's-Melinda's testimony was critical to proving the robbery element of the crime. Conviction for capital murder-robbery under Alabama law requires proof beyond a reasonable doubt that “the murder was committed ‘in the course of or in connection with the commission of, or in the immediate flight from the commission of’ the robbery.” Connolly v. State, 500 So.2d 57, 62 (Ala.Crim.App.1985), aff'd 500 So.2d 68 (Ala.1986) (quoting Ala.Code § 13A-5-39(2)). Hallford argues that disclosing Melinda's plea agreement would have impeached Melinda's credibility and undermined the State's case. Failure to disclose the agreement, Hallford argues, inflicted unconstitutional error upon the case. We disagree.

The prejudice inquiry used to resolve questions of procedural default is similar to the inquiry used to determine materiality for Brady purposes. Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1948-49, 144 L.Ed.2d 286 (1999); Crawford v. Head, 311 F.3d 1288, 1327 (11th Cir.2002) ( “[I]t seems that in practice the inquiries are the same. At the very least, ... ‘prejudice’ cannot be established where the Brady materiality standard is not satisfied.”). To prove prejudice, Hallford must show a “ ‘reasonable probability’ that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.” Strickler, 119 S.Ct. at 1952. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). See also Strickler, 119 S.Ct. at 1952 (“[T]he question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”) (quotation omitted).

We agree with the district court that “[t]he evidence that Hallford shot and killed Eddie Shannon is overwhelming.” The issue here, however, is whether the murder occurred in connection with a robbery. Melinda was the only witness to identify directly the wallet that Hallford burned as Shannon's. That a testifying witness had entered a plea agreement with the prosecution is something that can be material to an accused's defense. See United States v. Bailey, 123 F.3d 1381, 1397 (11th Cir.1997). But we do not believe that disclosing Melinda's plea agreement would have created a reasonable probability that Hallford's trial would have come out differently.

In addition to Melinda's testimony, the jury heard testimony from Hallford's stepson, Sammy, that matched Melinda's in providing critical details tying Hallford to Shannon's murder and the robbery. Sammy-as well as Melinda-testified that he witnessed Hallford attack Shannon with a pistol and described how Sammy helped Hallford destroy evidence that could have tied Hallford to the crime. Sammy testified that on the morning after the murder-after Hallford had Sammy return to the crime scene with him to wash blood from the bridge and make sure Shannon's body was undetectable-Hallford told Sammy to build a fire in a drum outside the trailer. According to Sammy, after the fire was lit, Hallford brought out a wallet and burned its contents. Sammy testified that he saw Hallford burn an orange and white military identification card. Sammy did not read the name on the card, and Hallford's thumb obscured the card's picture. Sammy testified that Melinda was present when Hallford burned the wallet.

The victim's step-brother, David Ferguson, testified that Shannon carried a wallet in which he kept an identification card. The victim's father, Olen Johns, who similarly described Shannon's wallet and stated that Shannon's wallet carried his military identification card, testified that he never saw Shannon's wallet after the murder.

Melinda's testimony that Hallford burned Shannon's wallet on the morning after the murder was more specific than the other wallet-related testimony.FN6 But-apart from Melinda's testimony-the testimony from Sammy, Ferguson, and Johns indirectly identifying Shannon's wallet, when coupled with the other evidence presented at trial, was easily sufficient for a jury to conclude that Hallford had taken (and had then burned) Shannon's wallet. Alabama law provides that a defendant's guilt may be established by circumstantial evidence. McMillian v. State, 594 So.2d 1253, 1263 (Ala.Crim.App.1991) (“In reviewing a conviction based on circumstantial evidence, ‘[t]he test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt ....’ ”). Perhaps the most incriminating circumstantial evidence is the timing of Hallford's acts: Hallford burned a wallet containing a military identification card like Shannon's less than twelve hours after the murder occurred and after spending most of the same morning undertaking efforts to conceal the crime. Shannon's wallet was not recovered with his body.

FN6. Melinda identified the wallet Hallford burned as Shannon's. Melinda further testified that Hallford, as he was emptying the wallet's contents, referred to Shannon as a “cheapskate” because he had no money in his wallet and showed Melinda a picture from Shannon's wallet.

When determining whether Hallford suffered the kind of prejudice required to excuse his procedural default, we consider disclosure of Melinda's plea agreement against the backdrop of other evidence presented at trial. Crawford, 311 F.3d at 1330-31 (considering suppressed GBI report and concluding that defendant could not demonstrate prejudice to excuse procedural default “given the strong evidence of [defendant's] guilt”). Even if Melinda's plea agreement had been disclosed and her testimony successfully discredited, we conclude that the jury could have reasonably found that the circumstantial evidence of the robbery excluded every reasonable hypothesis except that of guilt. Disclosure of the plea agreement could not reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.FN7

FN7. Our conclusion is strengthened some by the fact that Hallford did place Melinda's credibility in issue at trial. Hallford suggested during his testimony that Officer Ford improperly influenced the testimony of Melinda and Hallford's other children. Hallford specifically addressed Melinda's changing story, saying: “If [Melinda] thought [changing her story]was the only way she was going to be released, I imagine anyone on the jury if they were locked up and were expecting to be tried on a murder charge would say anything Mr. Walter Ford would want. You have to be in that predicament to really know.”

Hallford further contends he suffered prejudice from the alleged Brady violation because Melinda was the only witness to testify for the State during the penalty phase. During her penalty phase testimony, Melinda described her incestuous relationship with Hallford and Hallford's jealousy of Shannon. Melinda's testimony was offered to rebut Hallford's testimony during the guilt phase that he was a good father. Hallford contends he suffered prejudice because he was unable to use the plea agreement to impeach Melinda's penalty phase testimony. We disagree.

We accept that the incest evidence may have been shocking. But the trial court properly instructed the jury on how to weigh the evidence and the two aggravating circumstances in recommending Hallford's sentence.FN8 Even if Hallford had been able to discredit Melinda's testimony by introducing her plea agreement, we do not believe a reasonable probability arises that the result of the trial would have been different. Ample evidence from the trial-without Melinda's penalty-phase testimony-allowed the jury to find the two aggravating circumstances and to find that the aggravating circumstances outweighed the mitigating circumstances. Hallford cannot, therefore, show prejudice to excuse his procedural default.

FN8. After instructing the jury on how to balance aggravating and mitigating factors to determine Hallford's sentence, the trial court told the jury that it may consider only two aggravating factors: that the “capital offense was committed while the Defendant was engaged in or attempting to commit a flight after committing, or attempting to commit a robbery” and that “the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses.”

IV. Ineffective Assistance Claim

Hallford also contends that his trial counsel was ineffective during the penalty phase by mishandling the incest evidence and by failing to investigate or present certain mitigation evidence. “To succeed on a claim of ineffective assistance, [Hallford] must show both incompetence and prejudice.” Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir.2000) (en banc). To make this showing, Hallford must demonstrate that his trial counsel's performance “fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 1312-13 (quoting Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986)) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed.2d 674 (1984)) (internal marks omitted).

We review trial counsel's performance for “reasonableness under prevailing professional norms.” Chandler, 218 F.3d at 1313 (quoting Strickland, 104 S.Ct. at 2065). And our scrutiny of counsel's performance “must be highly deferential.” Strickland, 104 S.Ct. at 2065. See also Chandler, 218 F.3d at 1314 (“Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” (citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986))). “No absolute rules dictate what is reasonable performance for lawyers.” Id. at 1317. See also Strickland, 104 S.Ct. at 2065 (“There are countless ways to provide effective assistance in any given case.”). We review those acts or omissions by counsel that Hallford alleges are unreasonable “and ask whether some reasonable lawyer could have conducted the trial in that manner.” Chandler, 218 F.3d at 1316 n. 16. Upon review, we conclude that the acts of Hallford's trial counsel-although unsuccessful-were not unreasonable. See id. at 1314. (“Nor does the fact that a particular defense ultimately proved to be unsuccessful demonstrate ineffectiveness.”).

A. Incest Evidence

Hallford contends his trial counsel was ineffective by opening the door for presentation of the incest evidence and by failing to request a limiting instruction.FN9 In his testimony during the guilt phase, Hallford suggested that his efforts to discipline his children strictly-the same children who provided the most incriminating testimony against Hallford-provided them with motive to testify against him. The State answered Hallford's “good father” testimony during the penalty phase with evidence that Hallford sexually abused Melinda and had an incestuous relationship with her in the months leading up to Shannon's murder.FN10

FN9. For discussion's sake, we accept Hallford's contention that the incest evidence was otherwise inadmissible at trial without Hallford's testimony opening the door to its presentation. We do not actually decide whether or not the incest testimony may have been properly admitted at trial had Hallford not so testified.

FN10. The Alabama Court of Criminal Appeals deemed the incest evidence “admissible for the purpose of negating [Hallford's] testimony, which obviously had been offered in an effort to portray himself as a good father and, therefore, a person of good character.” Hallford, 548 So.2d 526, 544 (Ala.Crim.App.1988).

Hallford's trial counsel testified at the state post-conviction evidentiary hearing that he intended to show through his client's testimony that “perhaps the children had some sort of reason for their testimony and turning on him” and that this testimony might generate sympathy for Hallford. The issue of guilt was hotly contested in this case. The children's testimony hurt Hallford's chances for acquittal. In combating the children's testimony-particularly the detailed eyewitness accounts from Melinda and Sammy-an objectively reasonable counsel could reasonably seek to discredit them as Hallford's counsel did at the guilt phase. That this testimony at the guilt phase prompted later presentation at the penalty phase of the incest evidence-after Hallford was adjudged guilty-was a byproduct of an otherwise reasonable act by a defense counsel trying to avoid a conviction. And if Hallford had been found not guilty, no penalty phase would have occurred.

We agree with the district court that “[f]acts seldom occur in isolation of other facts.” We have written that “for a petitioner to show that [his counsel's] conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take.” Marquard v. Sec'y for Dept. of Corr., 429 F.3d 1278, 1304 (11th Cir.2005) (quoting Chandler, 218 F.3d at 1315). Presenting evidence at the guilt phase that key witnesses may have had ulterior motives to testify against Hallford was not unreasonable in a case in which guilt was contested.

Hallford also contends his counsel was ineffective for failing to request a limiting instruction that the jury should not consider the incest evidence in determining the existence of the aggravating factors. Hallford asserts that, without a limiting instruction, the jury may have concluded that the incest evidence could be considered as evidence for finding the especially heinous, atrocious, or cruel aggravating circumstance. We disagree.

In describing the heinous, atrocious, or cruel aggravating circumstance, the trial court told the jury that the acts it might consider were those attendant to the capital offense itself and those which were “unnecessarily torturous to the victim.”FN11 (Emphasis added.) And the trial court instructed the jury that they could consider only the two aggravating circumstances charged. “Jurors are presumed to follow the law as they are instructed.” Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir.1985). We think the instructions plainly and correctly conveyed to the jury that in meting their recommended sentence they could consider only those heinous, atrocious, or cruel acts that befell the murder victim, Shannon. Failure to request a limiting instruction, under the circumstances, was not ineffective.

FN11. We find no evidence in the record that would lead a reasonable trier of fact to conclude that there was more than one victim-Charles Eddie Shannon-in this case. The indictment charges a single-victim crime-the murder and robbery of Shannon. And the court's charge after the guilt phase of the trial-to which the court later referred the jury in its penalty-phase charge-uses the term “victim” interchangeably with “Charles Eddie Shannon.” We are confident that the jury, at the penalty phase, understood that “victim” referred exclusively to Shannon.

By the way, even if counsel acted unreasonably in handling the incest evidence, we cannot say-in the light of the overwhelming evidence of Hallford's guilt and the nature of the killing-that the result of the trial would have been different.

B. Mitigation Evidence

Hallford's penalty-phase presentation consisted only of his mother's testimony. Hallford contends his trial counsel was ineffective because counsel failed to conduct a background investigation and to present evidence of other mitigating circumstances. Hallford's counsel explained that he did not present psychological or personal background testimony because he “just didn't have the benefit of a client that had a good background.” In preparing his penalty phase presentation, Hallford's counsel interviewed only Hallford and his mother. We must determine whether counsel acted reasonably in not investigating or presenting more evidence, while according counsel's decision the high degree of deference it is due. Marquard, 429 F.3d at 1304.

We have written that “no absolute duty exists to investigate particular facts or a certain line of defense.” Chandler, 218 F.3d at 1317. A reasonable defense does not require full investigation of all alternatives. “Sometimes, a lawyer can make a reasonable decision that no matter what an investigation might produce, he wants to steer clear of a certain course.” Rogers v. Zant, 13 F.3d 384, 387 (11th Cir.1994). Here, Hallford's trial counsel decided that a “personal and emotional persuasive argument” in which he would attempt to “reach into and touch that spot of compassion that one human being would feel for another human being” was the most effective means of arguing for a merciful sentence. Under the circumstances as they existed at trial, we believe an objectively reasonable lawyer could try the case that way.

During the state and federal post-conviction proceedings, collateral counsel demonstrated that had trial counsel conducted an investigation he may have discovered some evidence that (1) Hallford's father suffered from paranoid schizophrenia; (2) Hallford had a turbulent childhood, dominated by his father's abusive behavior and alcohol abuse; (3) Hallford was sexually abused as a child; and (4) Hallford often found his father having sex with Hallford's cousins. A psychologist also testified during the federal post-conviction proceeding that Hallford exhibited “paranoid characteristics” and had emotional, sexual, and anger issues rooted in his childhood experiences.

“[E]ven when trial counsel's investigation is less complete than collateral counsel's, trial counsel has not performed deficiently when a reasonable lawyer could have decided, in the circumstances, not to investigate.” Housel v. Head, 238 F.3d 1289, 1295 (11th Cir.2001). If Hallford's counsel had introduced some of the mitigating evidence presented in the post-conviction proceedings, the State could have countered with evidence that Hallford sexually abused each of his children and even raped one of his children. The State could also have introduced damaging testimony from a mental health expert-who testified during the federal post-conviction proceeding-that Hallford was “self-centered” and did not care about the consequences of his acts.

It is reasonable-and not ineffective-for trial counsel to eliminate certain lines of presentation if he has “[m]isgivings about hurtful cross-examination and rebuttal witnesses.” Chandler, 218 F.3d at 1321. “[T]he range of what might be a reasonable approach at trial must be broad.” Id. at 1313. Hallford's trial counsel had represented Hallford in prior legal proceedings. Counsel's statement that Hallford did not have a good background-knowledge counsel could have started accumulating as Hallford's lawyer before the present case-indicates his concern about injecting other aspects of Hallford's life into the trial. See Dobbs v. Turpin, 142 F.3d 1383, 1388 (11th Cir.1998) (noting that failure to investigate may be reasonable when defendant has given counsel reason to believe it would be fruitless). It was also reasonable not to present evidence from Hallford's childhood because Hallford was 39 years old when he murdered Shannon. FN12 See Bolender v. Singletary, 16 F.3d 1547, 1561 (11th Cir.1994) (recognizing that evidence of childhood abuse may be of minimal value when defendant is adult). But see Jackson v. Herring, 42 F.3d 1350, 1364-65 (11th Cir.1995) (concluding that, under certain circumstances, failure to present mitigating evidence derived from defendant's childhood may be unreasonable even when defendant was 33 years old). Under the circumstances, we conclude that not presenting more mitigation evidence was not unreasonable. FN13

FN12. Explaining his decision not to present evidence from Hallford's childhood, trial counsel stated: “But [Hallford] was an adult and he had been in prison before and I just didn't feel that I would be effective in front of a jury talking about how unfortunate things were when he was a child.” An objectively reasonable lawyer could so conclude. FN13. Hallford also contends his trial counsel was ineffective for failing to object to information considered in the pre-sentence report and for failing to challenge Hallford's sentence as being arbitrary, capricious, and disproportionate. After review, we find no merit in these claims.

V. Heinous, Atrocious, or Cruel Aggravating Circumstance

Hallford contends the evidence at trial was insufficient to establish the especially heinous, atrocious, or cruel aggravating circumstance. The relevant question in reviewing the sufficiency of the evidence supporting a criminal conviction is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Alabama courts have limited “especially heinous, atrocious, or cruel” crimes to those “conscienceless or pitiless homicides which are unnecessarily torturous to the victim.” Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981). In this case:

The trial court found that [Hallford], after luring the 16-year old boy to the isolated area near the river, shot him in the mouth, rendering him defenseless. The trial court further found that [Hallford] then dragged and marched the helpless and pleading victim to the river, where he shot him in the head twice more and shoved him in the river after taking his wallet. Hallford, 548 So.2d at 538.

These facts were supported at trial chiefly by testimony from Sammy and Melinda. Sammy and Melinda further testified that five minutes elapsed between the first shot to Shannon's face and the final two shots to Shannon's head. During this time Hallford dragged Shannon by his feet and pulled him by his hair toward the river. The state trial court, therefore, did not clearly err in finding Shannon's murder to be especially heinous, atrocious, or cruel.

VI. Conclusion

For the foregoing reasons, the district court properly denied Hallford's 28 U.S.C. § 2254 petition.

 
 


Phillip D. Hallford

 

 

 
 
 
 
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