A jury in DeKalb County, Alabama, convicted Judith Ann Neelley of capital murder and then voted ten to two that she should be imprisoned for life without parole. The trial judge held another sentencing hearing, rejected the recommendation and sentenced her to death by electrocution. The five opinions printed here, from 1985 to 1998, carry that sentence through every court that reviewed it, and none of them disturbed it. The victim was Lisa Ann Millican, thirteen, taken from the Riverbend Mall in Rome, Georgia, on the night of September 25, 1982, and held handcuffed to a motel bed while Alvin Neelley raped her over several days. On September 28 she was driven to the rim of the Little River Canyon, where, the courts found, Judith Neelley injected her six times with drain cleaner, and when that did not kill her, shot her in the back and pushed her body over the edge.
The first two opinions are about a lawyer in a hallway. On October 10, 1982, Neelley was arrested in Murfreesboro, Tennessee, on charges of passing forged money orders, and her husband hired the family attorney, Bill Burton, to represent her. On the night of October 14, while FBI Special Agent Bill Burns questioned her for five and a half hours, Burton came to the Rutherford County jail to tell her not to talk. The officers would not let him see her unless she asked for him, and she was never told he was there. Presiding Judge Bowen’s opinion for the Court of Criminal Appeals, on March 12, 1985, held any error in admitting her statements harmless. By the time the Supreme Court of Alabama ruled on June 27, 1986, the United States Supreme Court had decided Moran v. Burbine, which held that the police need not tell a suspect of a lawyer’s efforts to reach her, and Justice Beatty affirmed on that footing. The same record held what came next: five days after Millican’s death Neelley picked up Janice Chapman and her common-law husband on a street in Rome, shot him in the back and left him for dead, and shot and killed Chapman. The courts held that evidence admissible.
The last three opinions turn on her trial lawyer. Robert B. French Jr., appointed because she was indigent, argued that Alvin Neelley’s abuse had broken her will, and he put that defense to the jury through four days of her own testimony and no expert. After the trial he signed a contract with her giving him half the profits from any publicity. The Court of Criminal Appeals held on June 18, 1993, that the contract had not created an actual conflict of interest. The Supreme Court of Alabama agreed to review the case and then, on June 10, 1994, quashed the writ as improvidently granted, over Justice Steagall’s dissent that the contract had shaped French’s strategy and cost her the effective counsel the Constitution promised. On April 9, 1998, the Eleventh Circuit, applying the federal habeas law Congress had rewritten in 1996, affirmed the denial of her petition. Governor Fob James commuted her sentence to life imprisonment on January 15, 1999, and the Alabama Board of Pardons and Paroles denied her parole in May 2023.
Neelley was convicted, and the courts describe her conduct as a record they had accepted, including the scheme to lure girls and young women into her car for her husband. The defense she raised, that she acted under his domination, is neither proved nor disproved in these pages. The courts report it and the jury’s rejection of it, and the 1985 opinion quotes the clinical psychologist Margaret Nichols, who told the new-trial hearing that Neelley “probably fits the battered women’s syndrome to the most severe extent” she had seen. Alvin Neelley’s own prosecution, in Georgia, lies outside these opinions. Neelley has no Case File in this archive, so these five opinions are the fullest account of her case it carries.
The four Alabama opinions and the federal one are public records. The man Neelley shot in Rome on October 3, 1982, survived, and as a living survivor he appears only as J.H. The young women the courts say she tried to pick up appear as D.B. and D.S., her mother and her uncle, who testified at the hearing on her motion for a new trial, as B.A. and D.A., and the juror whose conduct was challenged as E.H. Lisa Ann Millican and Janice Chapman keep their names, as do the officers, among them Danny Smith and David Grissom, the FBI agent, Bill Burton, Robert French and the other lawyers.
The Caselaw Access Project text is printed as scanned. Agent Burns is “Bums” in several places, “Jier” stands for “her” in Justice Steagall’s dissent, and the Eleventh Circuit’s “effeetive-assis-tance-of-counsel” keeps the scanner’s hyphens. Nothing has been spell-checked. Judge Bowen’s 1985 opinion is followed by his opinion on rehearing. The Supreme Court of Alabama’s 1994 order is a short per curiam, and the dissent printed after it is Justice Steagall’s; the Eleventh Circuit records that Justice Almon dissented as well, but no opinion of his appears in the report.
Judith Ann NEELLEY v. STATE.
7 Div. 145.
Court of Criminal Appeals of Alabama.
March 12, 1985.
Rehearing Denied May 14, 1985.
Robert B. French, Jr., Fort Payne, for appellant.
Charles A. Graddick, Atty. Gen., and Ri-vard Melson and William D. Little, Asst. Attys. Gen., for appellee.
[OPINION BY BOWEN, Presiding Judge. type=majority]
BOWEN, Presiding Judge.
On the night of September 25, 1982, thirteen-year-old Lisa Ann Millican was taken from the Riverbend Mall in Rome, Georgia. After being brutalized and sexually abused, she was taken to the rim of the Little River Canyon in DeKalb County, Alabama, on September 28th. There, using a needle and syringe, Judith Ann Neelley injected the child with six shots of caustic drain cleaner. When these injections failed to kill the teenager, Mrs. Neelley shot her in the back with a pistol and pushed her body into the canyon.
Mrs. Neelley was indicted for the capital offense of murder during a kidnapping in violation of Alabama Code 1975, § 13A-5-40(a)(1). A jury found her “guilty of the capital offense charged in the indictment” and recommended that she “be punished by life imprisonment without parole.” The vote was ten jurors for life without parole and two for death. After another sentencing hearing, the trial judge rejected the jury’s recommendation and sentenced Mrs. Neelley to death by electrocution.
I
The major issue presented by this appeal is whether the failure to inform Mrs. Neelley that an attorney was at the jail waiting to see her while she was being questioned by law enforcement officers violated her right to counsel and vitiated her waiver of her Miranda rights rendering her statements inadmissible for use by the prosecution in its case-in-chief.
Mrs. Neelley made two statements, one in Tennessee and the second in Alabama. Evidence on the voluntariness of these statements was presented both at trial during the voluntariness hearing and at the hearing on the motion for new trial.
On September 28, 1982, Mrs. Neelley killed Lisa Ann Millican in DeKalb County, Alabama. On October 10th, she was arrested in Murfreesboro, Tennessee, on unrelated charges involving forged checks or money orders at a Murfreesboro bank.
Two days later, on October 12th, Alvin Neelley, the defendant’s husband, retained Murfreesboro attorney Bill Burton to represent Mrs. Neelley on the forged money orders. Although Burton had never dealt with Mrs. Neelley, he had been the “family attorney” for a number of years, having represented Mrs. Neelley’s father, mother, sister, grandfather, and uncle.
That same day, Burton interviewed Mrs. Neelley at the Rutherford County (Tennessee) Jail. Either later that day or the next, he represented her at a preliminary hearing on the forged money orders. After this hearing and before the 14th of October, Burton had at least two conversations with Mrs. Neelley at the county jail.
On October 13th, Alvin Neelley was arrested on charges involving forged money orders and was incarcerated in the Rutherford County Jail.
From 5:50 until 11:20 on the night of October 14th, Mrs. Neelley was interviewed by Special Agent Bill Burns of the Federal Bureau of Investigation. All the State’s evidence proved that Mrs. Neelley never requested counsel. However, Mrs. Neelley testified that when the interview first started she told Agent Burns that she would like to speak to her lawyer before she answered any questions. She stated that when Bums told her that “it was just a few routine questions about [her] background”, she replied that since all he wanted was some background information she would answer without a lawyer present. Although she agreed to talk without her lawyer present, Mrs. Neelley refused to sign a waiver of rights form.
Agent Bums testified that he had already obtained an oral waiver and had begun to take Mrs. Neelley’s statement before he learned she had an attorney. He stated that Mrs. Neelley told him that Burton was her attorney and that she initially refused to talk about the money orders without her attorney being present: “She stated that Bill Burton was her attorney and that the reason she did not want to discuss this issue [money orders] was because some people would think that a person who traveled around without having a steady job was not a good person.” Mrs. Neelley agreed to talk “about any other matter.” Later in the interview, Mrs. Neelley did volunteer information about the money orders.
During the interview of October 14th, Agent Burns advised Mrs. Neelley on five separate occasions that “if she did not want to be interviewed any further that the interview could be terminated and that she could be returned to her jail cell at the sheriff's jail and that she did not have to talk with us any further if she didn’t want to.” The opportunity to terminate the interview was given at 6:25, 6:49, 7:32, 8:10, and 11:05. Burns stated that “[o]n each occasion she insisted that she did want to continue talking with us.”
Mrs. Neelley testified that she declined to stop talking when given the opportunity because she “wanted to find out exactly what they were there for”: “I told them that before I went back I’d like to find out a few more details about what they were wanting to know. * * * I just wanted to find out exactly what they were there for. They were mostly beating around the bush.” She told Agent Burns that she wished he would stop asking her if she wanted to stop talking.
At some point in this interview with Mrs. Neelley, after the waiver of the Miranda rights had been obtained, Agent Burns was informed that Attorney Burton was present and wanted to talk to his client. Burton was not allowed to see Mrs. Neelley and Mrs. Neelley was never told that Burton was in the hallway wanting to see her.
Attorney Burton testified that, between 6:30 and 7:00 on the evening of October 14th, Alvin Neelley called him and asked him to come to the jail because “there were officers from out of state that wanted to talk to them.” Burton immediately went to the jail and learned that federal and Georgia law enforcement officers were interviewing both Mr. and Mrs. Neelley.
Alvin Neelley requested an attorney, and Burton was allowed to visit him. However, Burton was not allowed to see Mrs. Neelley, who was being interviewed by two agents of the Federal Bureau of Investigation. After Burton appeared, an F.B.I. agent contacted a United States Attorney and, on his advice, told Burton that he would not be allowed to see Mrs. Neelley unless she specifically requested an attorney.
Investigator Danny Smith of the District Attorney’s Office in DeKalb County, Alabama, refused to allow Burton to see Mrs. Neelley “somewhere around seven o’clock.” Smith testified:
“As I recollect, Mr. Burton came out of the interview room where Alvin Neelley was being interviewed and asked if we were interviewing Judy Neelley, and I told him that we were. He wanted to know where she was being interviewed at, and I think I indicated the room that she.was in, and he advised me that he was an attorney, that he had been retained to represent her regarding some forgeries or some checks there in Rutherford County, and I advised him that we were not talking with her about forgeries; that we were investigating a homicide, and I refused him admittance to the room.”
When Burton attempted to see Mrs. Neelley, he was not aware of any murder investigation and “was not aware of anything in Georgia or Alabama prior to that night.” He testified that he “knew nothing of Lisa Ann Millican [the victim] and never saw” Mrs. Neelley after he became aware of that case. Burton stated that “the general purpose for going to the jail, [was] to advise her not to talk to the detectives.” When Burton was denied access to Mrs. Neelley, he “didn’t create a scene to get back to her, but it was obviously the intent of the officers to prevent ... [him] from getting back to her.” He testified that he told one officer that “you may mess up your case or you may mess up your evidence if you don’t let me see her.”
At the hearing on the motion for new trial, Mrs. Neelley’s uncle, D.A., testified that when Burton was not allowed to see Mrs. Neelley “[t]he words got a little heated almost to the point of an argument, and Bill Burton kept expressing his desire to be in the room with his client while she was being questioned and was refused.”
Immediately after the interview with Agent Bums, Mrs. Neelley waived extradition from Tennessee and was transferred to Fort Payne, Alabama, on October 15th. She was charged with murder in a complaint filed in DeKalb County on October 15,1982, and arrested at 2:18 that morning. Mrs. Neelley gave her second statement at approximately 1:00 or 2:00 on the afternoon of October 15th in the courthouse at Fort Payne. This statement was made to DeKalb County District Attorney’s Investigator Danny Smith. At 3:00 that afternoon, Mrs. Neelley was brought before a circuit judge, the charge was explained, and counsel was appointed. The indictment was returned on October 27, 1982.
In his oral order following the voluntariness hearing (see Appendix I) held during the trial and in his written order denying the motion for new trial (see Appendix II), the trial judge found that Mrs. Neelley was properly advised of her Miranda rights and that she made voluntary and understanding waivers of those rights, including the right to have counsel present.
The trial judge found that the refusal to admit Attorney Burton was not an interference with the attorney-client relationship with regard to the homicide cases. In his oral order made during the trial, the judge stated:
“Number 6, the Court finds that Attorney Bill Burton did not represent the defendant in connection with the criminal offense being investigated by Special Agent Bums and the other officers conducting the interview and that the defendant did not request to have an attorney present during the interview; therefore, the Court finds that the refusal to admit Attorney Burton to the interview room was not an interference with the attomey/client relationship. To the extent, however, that the defendant’s statement made on that occasion contains anything about the offense with which she was charged in Murfreesboro, Tennessee, that portion of the statement is inadmissible, because, clearly, Mr. Burton was representing her with regard to those charges." (Emphasis added). Appendix I, p. 1-2.
In his written order denying the motion for new trial, the judge made similar findings except that he made no reference to any part of the statement being excluded:
“e. Attorney Bill Burton did not represent the defendant in connection with the murder of Lisa Millican, the offense about which the defendant was being interviewed, and the refusal to admit him into the interview room was not an interference with the attorney-client relationship.” Appendix II, p. II — 3.
The determination of the admissibility of Mrs. Neelley’s confessions initially involves the resolution of two issues: (1) Did the refusal to allow attorney Burton to see Mrs. Neelley violate Mrs. Neelley’s Sixth Amendment right to the effective assistance of counsel? (2) Did the failure to inform Mrs. Neelley that Attorney Burton was present and had requested to see her preclude a knowing and intelligent waiver of her Fifth Amendment right against self-incrimination and right to counsel?
To each question there exists authority supporting both the preservation and the violation of Mrs. Neelley’s Sixth Amendment right to counsel.
In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the accused not only requested counsel, but his counsel was prevented from seeing him after the attorney arrived at the police station. In Miranda v. Arizona, 384 U.S. 436, n. 35, 86 S.Ct. 1602, n. 35, 16 L.Ed.2d 694 n. 35 (1966), the United States Supreme Court commented on the deprivation in Escobedo.
“The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake.” (Emphasis added).
Confusion exists over the actual meaning of the dicta contained in this footnote. It has been argued that the footnote means literally what it says. See Rothblatt and Pitler, Police Interrogation: Warnings And Waivers—Where Do We Go From Here?, 42 Notre Dame Law. 479, 494-95 (1967). However, Professor Kamisar argues that “to read the language in the Court’s footnote 85 as granting the lawyer retained by friends or relatives (not by the suspect himself) an absolute, automatic right to see his ‘client’ who has not asked for a lawyer and is unaware that he even has one is to prevent such suspects from waiving their rights in the absence of counsel and is, in effect, to say that the ‘realities’ of police station proceedings are such that the Miranda warnings alone do not provide adequate protection if issued by police officers.” Rothblatt, supra. See also Kamisar, Brewer v. Williams, Massi-ah And Miranda: What Is “Interrogation”? When Does It Matter?, 67 Geo.L.J. 1, n. 537 (1978).
Of the state supreme courts and the one federal circuit court which have considered the issue, all have held “that the failure to inform a suspect in custody that his attorney or an attorney retained for him was seeking to see him vitiated his waiver of his Fifth Amendment right to assistance of counsel at his questioning.” Burbine v. Moran, 753 F.2d 178 (1st Cir.1985).
Here, this Court need not decide whether Mrs. Neelley’s constitutional rights were violated because of our overwhelming conviction that the error, if any, was harmless.
II
HARMLESS ERROR
Even if Mrs. Neelley’s confessions were inadmissible because of a violation of her Fifth or Sixth Amendment right to counsel, any error in the admission of those confessions were cured by her own testimony at trial.
Although we are extremely reluctant to apply the doctrine of harmless error in a capital case, the facts before us are as unique as they are bizarre and not only invite but demand a finding of harmless error.
“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). It must appear “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” id. at 24, 87 S.Ct. at 828, because if “there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” id. at 23, 87 S.Ct. at 827 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-231, 11 L.Ed.2d 171 (1963)), then the error must be considered harmful.
Although the principles of harmless error do not apply to coerced confessions, Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), they do pertain to voluntary, albeit “illegally obtained” statements, i.e., those whose illegality follows from a failure to give adequate Miranda warnings or from other improper police procedures, see, e.g. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). “The two standards employed by the courts to determine whether a trial error is harmless are the ‘overwhelming evidence’ test and the ‘harmless beyond a reasonable doubt’ test.” Note: State v. Bonuchi: The Harmless Error Rule Applied To Miranda Exclusions, 27 St. Louis U.L.J. 727, 728 (1983):
“Under the ‘overwhelming evidence’ standard, the court on appeal will reverse the conviction only if the constitutionally admissible evidence does not provide an overwhelming indication of the defendant’s guilt. Under the ‘harmless beyond a reasonable doubt’ test, however, the conviction will be reversed if the tainted evidence could have reasonably contributed to the verdict.” Id., at 728
In the present case, we find harmless error under both types of judicial scrutiny—the existence of overwhelming other evidence of Judith Ann Neelley’s guilt and the fact that her statements could not reasonably be found to have contributed to the verdict.
At trial, before any confession had even been mentioned, the prosecution had entangled Mrs. Neelley in an intricate web of circumstantial evidence linking her to the murder.
Lisa Millican was last seen at the Riverbend Mall in Rome, Georgia, at approximately 7:00 on the night of Saturday, September 25, 1982. Mrs. Neelley and her husband were at that mall around 5:00 that same evening. The State established that on the following Tuesday Mrs. Neelley telephoned the Rome, Georgia, police department and told them that Lisa’s body could be found “where she left it.” That Wednesday, when the body had still not been discovered, Mrs. Neelley telephoned the DeKalb County Sheriff’s Office and gave the same information.
On October 3, 1982, Mrs. Neelley tried unsuccessfully to pick up D.B. in another shopping center in Rome, Georgia. Later that same day, Mrs. Neelley succeeded in getting J.H. and Janice Morrow Chapman to ride around with her and Alvin. J.H. testified that Mrs. Neelley pulled a pistol, marched him into the woods and that Alvin “holler[ed] down and [told] her to hurry up and get it over with, that [they] had to go.” J.H. stated that Mrs. Neelley responded, “Okay, just a minute,” told him not to worry about his girlfriend, “that she would take care of her too,” and shot him in the back. Miss Chapman was never seen again.
On October 4, 1982, Mrs. Neelley attempted to pick up D.S., using the same method or approach she had used with other girls.
Physical evidence also linked Mrs. Neelley to Miss Millican’s murder. Expert testimony revealed that one head hair “microscopically similar” to Mrs. Neelley’s head hair was found on the shirt Lisa Millican was wearing when her body was discovered. A hair “microscopically similar” to Mrs. Neelley’s was also found on a towel found at the scene. Human seminal fluid consistent with Alvin’s blood type was found within the body of Miss Millican.
Even though circumstantial, this evidence was sufficiently “overwhelming” to permit application of the harmless error rule.
Second, we conclude that Mrs. Neelley’s confessions did not reasonably contribute to the verdict and must be deemed harmless for this reason. As became apparent early in the trial, the defense strategy in this case was not to deny the fact that Mrs. Neelley committed the actual kidnapping and murder of Lisa Ann Millican. All the acts in the sequence of events culminating with the victim’s brutal murder were admitted by the defense. The only triable issue became the defendant’s mental state, or legal culpability for these acts. The theory of the defense hinged on the idea that Mrs. Neelley was not responsible for her acts by reason of a mental disease or defect induced by the abuse she endured at the hands of her husband. In this regard we find the case before us strikingly similar to Hall v. United States, 410 F.2d 653 (4th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436 (1969).
The defendant in Hall never denied the kidnapping with which he had been charged; insanity was his sole defense. In spite of the fact that under federal law a defendant’s statements to a psychiatrist are insulated from use during the guilt phase of a criminal trial, see 18 U.S.C. § 4244 (1982), the government introduced inculpatory admissions made to defendant’s psychiatrist. Against the contention that he should have received a new trial because of the erroneous admission of these statements, the Fourth Circuit Court of Appeals held that the error was harmless, commenting that, “It was deliberate defense strategy to admit the elements of the offense and deny mental responsibility.” 410 F.2d at 661 (emphasis added).
This Court would be blind to overlook the same deliberate defense strategy employed here. While we cannot fault the defense for attempting to turn the admission of Judith Neelley’s confession to its advantage, we must recognize the trial tactic used here, namely: Mrs. Neelley’s- attempt to exonerate her husband’s part in the atrocious crime was but another manifestation of her having been “programmed” by him to do his bidding, to carry out his criminal deeds, and then to shield him from liability. Under the circumstances, it would be unrealistic to find that disclosing the confession to the jury served to prejudice Mrs. Neelley. See also Meador v. United States, 341 F.2d 381 (9th Cir.1965) (because defense counsel admitted in his opening statement that the only defense was insanity, defendant could not have been prejudiced by the admission of a co-defendant’s statement implicating defendant in the commission of the crime); State v. Gatcomb, 389 A.2d 22, 27 (Me.1978) (“The record leaves no doubt that defense counsel had no realistic hope of an acquittal on the merits but was concerned primarily with establishing the truth of the plea of not guilty by reason of mental disease or defect. * * * It is thus apparent to us that it was trial strategy not to make any effort to deny the act of cutting the victim across the throat with broken glass, but to seek a finding of lack of responsibility therefore because of mental disease or defect. Such being the trial strategy, it was obviously harmless error (if error at all) to admit the testimony of Dr. Cloutier.”); People v. Congilaro, 60 A.D.2d 442, 400 N.Y.S.2d 409, 415 (N.Y.App.Div.1977) (“Inasmuch as defendant never placed in dispute ... the [criminal] acts but rather the sole question for the jury concerned his mental state at that time, there is no reasonable possibility that the Court’s error might have contributed to defendant’s conviction and such error is thus harmless beyond a reasonable doubt.”); State v. Barbour, 43 N.C.App. 38, 258 S.E.2d 72, 74 (1979), cert. denied, 299 N.C. 122, 261 S.E.2d 924 (1980) (“Defendant does not contend that he did not shoot Abner. There is no reasonable possibility, therefore, that the statement contributed to his conviction.”).
It has never been disputed that Judith Ann Neelley killed Lisa Millican. In his opening statement to the jury at the beginning of the trial, before the hearing on the admissibility of the confessions had been held, and before any reference to Mrs. Neelley’s statements had been made before the jury, defense counsel argued that Mrs. Neelley had killed Lisa at the direction of and under the control of Alvin Neelley, but that she “never had the intent to kill anyone.”
In his opening statement, defense counsel informed the jury of Mrs. Neelley’s deprived childhood, of her mother’s and her sister’s promiscuity, and of how, at fifteen years of age, she ran away from home and married Alvin Neelley, a twenty-six-year-old “ex-con” who stole her virginity and later her mind. Defense counsel told a story of how Mrs. Neelley was physically beaten and sexually abused; a story of how she was “brainwashed”, and reduced to a “vegetable” and an instrument and extension of her husband.
In his opening statement, defense counsel told the jury that Mrs. Neelley had been trained to do everything she could to try to keep Alvin satisfied and to avoid his beatings. Counsel related facts which involved Mrs. Neelley in robbery, firebombing, forgery, conspiracy to commit murder; and other crimes. Counsel told of how Alvin forced her to procure young girls with “small sex organs” for him.
Defense counsel admitted that Mrs. Neelley had “lured or captured or cajoled” thirteen year old Lisa Ann Millican to come with her after Alvin had pointed out Lisa as the one he wanted. He told of how Mrs. Neelley had “convinced” and “persuaded” the child to have sex with Alvin and of how Alvin had sexually abused Lisa. Finally, defense counsel related how Mrs. Neelley, under Alvin’s direction and control, injected Lisa with Drano and Liquid Plumber, shot her in the back with a pistol, and pushed her body into Little River Canyon.
Although the District Attorney had made no mention of any confession or statement in his opening remarks, defense counsel told the jury that “when they arrested Judy she spent all of her time exonerating Alvin saying he had nothing to do with any of it, that he’s just innocent.” Counsel stated that “when the evidence is in the State will prove its case, and we will prove that Judy Neelley lacked — although we don’t have to prove it — we will prove that Judy Neelley never had the intent to kill anyone.”
Mrs. Neelley’s defense was a combination of duress, Alabama Code 1975, § 13A-3-30, the battered woman syndrome, Annot., 18 A.L.R.4th 1153 (1982), and coercive persuasion, Delgado, Ascription of Criminal States of Mind: Toward A Defense Theory For The Coercively Persuaded (“Brainwashed”) Defendant, 63 Minn.L. Rev. 1 (1978); Dressier, Professor Delgado’s “Brainwashing” Defense: Courting A Determinist Legal System, 63 Minn.L. Rev. 335 (1979); Delgado, A Response To Professor Dressler, 63 Minn.L.Rev. 361 (1979). See also United States v. Hearst, 412 F.Supp. 863 (N.D.Cal.1975); United States v. Hearst, 424 F.Supp. 307 (N.D.Cal.1976), affirmed, 563 F.2d 1331 (9th Cir.1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); People v. Manson, 61 Cal.App.3d 102, 132 Cal.Rptr. 265 (1976), cert. denied, Manson v. California, 430 U.S. 986, 97 S.Ct. 1686, 52 L.Ed.2d 382 (1977).
The defense was that Alvin had subjected Mrs. Neelley to such violent and gross mental, emotional, physical, and sexual abuse that she would have done anything, and did do everything he asked. A picture was painted, in the terminology used at trial, of Alvin as “Frankenstein” and Mrs. Neelley as “The Bride of Frankenstein.” The jury was exposed to accounts of “putrid, pornographic, degrading, disgusting sex” as Mrs. Neelley testified how she had been dominated, manipulated, and trained like an animal. She described herself as feeling like “a piece of meat” and it was argued that she had been reduced to a “nonhuman”.
The trial judge was very liberal in allowing the defense to present its case to the point where finally the District Attorney protested that “the Court has been almost to the state of disbelief in being lenient.” Even though Alvin Neelley did not testify, time and time again the defense was permitted to prove what he had said. Only by showing that Mrs. Neelley was an animal, a puppet, acting without intent or thought, could the defense hope to sustain its theory of coercion and duress.
Much of the damaging testimony incriminating Mrs. Neelley was adduced by defense counsel in his cross examination of Agent Burns and Investigator Smith about what Alvin had told them about Mrs. Neelley. Although the prosecutor had only concentrated on the major portions of Mrs. Neelley’s statements, defense counsel interrogated Bums and Smith about facts and details not mentioned by the State. Counsel repeatedly inquired about the forged money orders, although the trial judge had previously ruled that those particular portions of the statements were inadmissible. The defense elicited testimony from Bums and Smith that Alvin had corroborated Mrs. Neelley’s statements that he had nothing to do with the murders. Indeed, it was defense counsel who directed Investigator Smith to tell the jury “in detail” what Alvin had said that Mrs. Neelley did to Miss Chapman and Miss Millican “sexually” and that Alvin had told Investigator Smith that Mrs. Neelley “enjoyed performing oral sex with a female after he had sexual intercourse with them.”
It was defense counsel’s cross examination of Agent Burns which elicited, over the State’s objection, Alvin’s statement that “Lisa Ann Millican came into him and told him that she wanted to have sex with him, and the reason for that was because Lisa Ann Millican was afraid of Judith Neelley and that Judith Neelley had told her that if she didn’t have sex with Alvin Neelley that she would turn her back over to the state authorities.” It was during defense counsel’s direct examination of Mrs. Neelley when she admitted that the very first sexual partner she had procured for her husband had been her own sister.
From the opening statement of defense counsel until his closing argument to the jury, Mrs. Neelley maintained that by her confessions she was attempting to exonerate Alvin Neelley of any criminal activity. In her confessions, she took “full responsibility for the culpability” of the murders and never implicated Alvin in the “direct acts”. A significant portion of her defense was devoted to showing that in confessing she was just doing what Alvin Neelley had told her to do. At trial, Mrs. Neelley testified that she killed Lisa Millican and Janice Chapman, and that she attempted to kill J.H. However, she maintained that she was acting under the control and at the direction of Alvin Neelley. She testified that the purpose of giving a statement to the F.B.I. was “[s]o A1 wouldn’t get in trouble.”
At trial, Mrs. Neelley testified that she was just doing as she had been told and that Alvin had coerced her into performing every criminal act she committed. As part of her defense, she introduced into evidence a letter she had written to Alvin on October 15, 1982 — after she had given both statements and after counsel had been appointed. She wrote the letter “expecting” that someone would read it and gave it to her trial counsel to deliver to Alvin. The letter was admitted over the State’s objection and despite the trial judge’s earlier ruling during the hearing on the voluntariness of the confession that it could not be presented to the jury.
In the letter, Mrs. Neelley claimed full responsibility for the death of Lisa Millican: “I told them that you didn’t have anything to do with the shooting though, and I have proof. * * * But they’re trying to hang the murder of Lisa on you too, and you weren’t even aware that I had her.” Mrs. Neelley testified that she wrote the letter to clear her husband even though it was not true: “I said that he was nowhere around when I did those things and I said he didn’t know anything about it, and he was there. He had told me to do it.” This letter was placed before the jury by the defense. Its significance lies in the fact that it discloses just how important and vital a role Mrs. Neelley’s own confessions played in establishing her defense.
In her four days of direct examination, Mrs. Neelley admitted virtually every fact contained in her confessions. She testified that she deliberately misled the law enforcement officers to believe that Alvin had nothing to do with the crimes she had committed. She stated that she originally told her trial attorneys the same story she told Agent Burns and Investigator Smith.
In her trial testimony, Mrs. Neelley not only admitted the facts of her confessions, but she volunteered additional information about her criminal activities with Alvin which included attempted murder, burglary, forgery, arson, theft, child abuse, incest, rape, and sexual sadism. Most significantly, Mrs. Neelley deliberately injected into the trial the countless forgeries and offenses involving the money orders, even though the trial judge had previously ruled those portions of her confessions inadmissible. Mrs. Neelley admitted that she killed Lisa Ann Millican and testified that she would have killed others if Alvin had told her to.
The very substance, detail, and quantity of Mrs. Neelley’s own testimony is so forceful that, even on the cold pages of the appellate record, it appears to a certainty that her testimony virtually annulled and annihilated any prejudicial effect the admission of her confessions could have had. That testimony redefines and gives new meaning to traditional concepts of depravity and evil.
In light of the overwhelming evidence against Mrs. Neelley, in view of the fact that her confession illuminated no disputed issue in the case, and considering her own admission at trial, we cannot avoid the conclusion that the admission of Mrs. Neelley’s confessions, if error, was harmless. While we recognize that a harmless error analysis has often been applied to claimed evidentiary error in capital murder cases, see, e.g., Coulter v. State, 438 So.2d 336, 343 (Ala.Cr.App.1982), affirmed, Ex parte Coulter, 438 So.2d 352 (Ala.1983), we, like the Fifth Circuit Court of Appeals,
“are highly aware of the threat to our cherished constitutional rights posed by the misapplication or creeping extension of the harmless error rule in any of its various mutations. We do not now nor do we intend to broaden the limited reach of this rule. Our review of the record, however, leaves us with no reasonable doubt that the tainted evidence did not contribute to petitioner’s conviction and that the jury at petitioner’s 1965 trial would have reached the same verdict without hearing the constitutionally defective testimony.”
Smith v. Estelle, 519 F.2d 1267, 1271 (5th Cir.1975), on rehearing, 527 F.2d 430 (5th Cir.1976).
In Smith v. Estelle, supra, the federal court initially determined that the admission of the defendant’s confession, although error, was harmless because of the overwhelming evidence, including his own trial testimony, against him. 519 F.2d 1267. On rehearing, however, the court was persuaded that part of its harmless error analysis might have been incorrect because, like the defendant in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), the accused in Smith v. Estelle may have been impelled to testify in order to overcome the effect of his earlier admitted confession. The Fifth Circuit Court of Appeals noted the following on rehearing:
“ ‘The same principle that prohibits the use of confessions [unlawfully] procured also prohibits the use of ... the fruit of the poisonous tree, to invoke a time-worn metaphor. * * * If he [took the stand] in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.’ Harrison v. United States, 1968, 392 U.S. 219, 222-23 [88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047].... If Smith would not have taken the stand but for the admission of his unlawful pretrial confession ... then his trial testimony was tainted thereby and cannot be considered as independent evidence of guilt for purposes of applying the harmless error rule.” Smith v. Estelle, 527 F.2d at 433.
In our judgment, the Smith v. Estelle and Harrison v. United States rationales for not finding harmless error are not present in the case before us. As one commentator has observed, “Nevertheless, if Harrison had, for other reasons, already decided to testify, the admission of his confessions would have had no actual coercive effect.” The crucial issue in Harrison is thus the defendant’s motivation for taking the stand; in the words of [the Supreme] Court, “ ‘[t]he question is not whether the petitioner made a knowing decision to testify, but why.’ ” Note, 82 Harv.L.Rev. 220, 223 (1968) (quoting Harrison v. United States, 392 U.S. at 223, 88 S.Ct. at 2010, 20 L.Ed.2d 1047.)
The record before us unequivocally illustrates that Mrs. Neelley’s decision to take the stand was a defense strategy unrelated to the admission of her confession. The very nature of her defense, revealing as it did the intimate marital details of her sordid relationship with Alvin Neelley, mandated that she, and she alone, would have to inform the jury of the alleged abuse she suffered. Her defense counsel’s opening statement, made at a time when he was unaware of whether or not his client’s confession would be admitted, all but told the jury that Mrs. Neelley would take the stand. Under the circumstances, we cannot say that Mrs. Neelley’s testimony was impelled by the admission of her allegedly unlawful confession.
Ill
In Part II of his written order overruling the motion for new trial, see Appendix II, pp. II — 6 through II — 11, the trial judge thoroughly explored and answered the defendant’s contentions concerning the alleged misconduct of juror E.H. “ ‘[T]he failure of a juror to make a proper response to a question regarding his qualifications to serve as a juror, regardless of the situation or circumstances, does not automatically entitle one to a new trial.’ * * ‘[t]he test is not whether the defendant was prejudiced but whether he might have been.’ ” Ex parte O’Leary, 438 So.2d 1372, 1374 (Ala.1983). The trial judge found “no probable prejudice resulted to the defendant from the responses or lack of responses by juror E.H. during the voir dire examination by counsel.” The trial judge applied the correct test and the record supports his findings. We find no error in this or in the other allegations of misconduct attributed to juror E.H. See also Ex parte Troha, 462 So.2d 953 (Ala.1984).
IV
The trial court properly admitted evidence that subsequent to the murder of Lisa Ann Millican the defendant shot and killed Janice Chapman, shot and attempted to kill J.H., and attempted to lure or pick up other victims. This issue was addressed in Part III of the order overruling the motion for new trial. See Appendix II, pp. II — 11 through 11-12. “Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res ges-tae, or to establish the identity of the accused (and perhaps as bearing on the issue of insanity when that defense is pleaded in the case).” Garner v. State, 269 Ala. 531, 533, 114 So.2d 385 (1959). See also Ex parte Killough, 438 So.2d 333 (Ala.1983); C. Gamble, McElroy’s Alabama Evidence § 69.01 et seq. (3rd ed. 1977).
V
The jury imposed a sentence of life without parole. “The holding in Witherspoon [v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ], is not applicable where the jury recommends a sentence less than the death sentence. Bumper v. State of North Carolina, 391 U.S. 543 [88 S.Ct. 1788, 20 L.Ed.2d 797]” Eady v. State, 284 Ala. 327, 328, 224 So.2d 876 (1969); Davis v. State, 440 So.2d 1191, 1193 (Ala.Cr.App.1983), cert. denied, Davis v. Alabama, 465 U.S. 1083, 104 S.Ct. 1452, 79 L.Ed.2d 770 (1984). See also Clark v. State, 451 So.2d 368 (Ala.Cr.App.1984). See also Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), “clarifying” Witherspoon.
VI
The offense in this case occurred after the effective date of Alabama’s 1981 capital punishment statute and is governed by Alabama Code 1975, § 13A-5-40 (1981) et seq. In reviewing any case in which the death penalty has been imposed, this Court must follow the guidelines set out in § 13A-5-53.
In accordance with § 13A-5-53(a), we have reviewed the entire record, including the trial and sentencing proceedings, for any error adversely affecting the rights of the defendant and have found no error. See also A.R.A.P. Rule 45A.
The trial court properly found the existence of two aggravating circumstances: “The capital offense was committed while the defendant was engaged ... in ... kidnapping” (§ 13A-5-49(4)) and that it was “especially heinous, atrocious and cruel compared to other capital offenses” (§ 13A-5-49(8)). Even a cursory reading of the record and the trial judge’s reasons for finding these two aggravating circumstances reveals that his findings are supported by the evidence. See Appendix III, pp. III—6 and III-7.
The trial judge stated his reasons for finding the nonexistence of statutory mitigating circumstances identified in § 13A-5-51(1) through (6). Appendix III, pp. Ill — 8 through III — 12. The only statutory mitigating circumstance found to exist was the age of the defendant at the time of the crime (§ 13A-5-51(7)). Appendix III, p. Ill — 12.
The trial judge did find the existence of two nonstatutory mitigating circumstances. Although he found that the offense was not committed while the defendant was under the influence of extreme mental or emotional disturbance, he did find, as a nonstatutory mitigating circumstance, that the “defendant was substantially influenced by her husband.” As a second nonstatutory mitigating circumstance, the trial judge considered the fact that Mrs. Neelley “voluntarily and intentionally set in motion the events which led to her arrest and the arrest of her husband.” Appendix III, pp. Ill — 12 and III — 13. The judge’s findings concerning the statutory and nonstatutory mitigating circumstances are supported by the evidence.
The following findings are in compliance with § 13A-5-53(b). First, despite the shocking nature of the criminal acts involved, the record reveals no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. In this dramatic trial, there is no evidence of prejudicial sensationalism. The trial judge allowed the defense extraordinary latitude but maintained a judicial atmosphere throughout the proceedings. The prosecution was responsible and no foul blows were struck. Defense counsel were passionate in their conscientious representation of their client and no fault can be found in their effectiveness. Counsel far surpassed that standard constitutionally required for the effective, assistance of counsel. Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Second, our independent weighing of the aggravating and mitigating circumstances indicates that death was the proper sentence. This Court has read and reread the testimony of clinical psychologist Margaret Nichols. At the hearing on the motion for new trial, she testified that Mrs. Neelley “probably fits the battered women’s syndrome to the most severe extent that [she had] seen.” She stated that Alvin’s mental state was substituted for hers so that Mrs. Neelley “had no intents of her own.” This Court is not insensitive to Mrs. Neelley’s defense. However, the Court is also aware of the trial testimony of psychiatrist Alexander Salillas that Mrs. Neelley’s actions were not those “of a crazy person, but a demented person,” and that, if Mrs. Neelley had been beaten and abused to the extent she testified, she would “probably be dead by now and so disfigured and mentally impaired as to be unable to do anything else at this point in time. * * * She would probably have every bone broken in her body.”
There are four conceivable legal issues upon which evidence of the abuse suffered by Mrs. Neelley might have been relevant, namely: (1) duress, (2) insanity, (3) diminished capacity, and (4) mitigation of punishment.
The first, duress, is unavailable as a defense to Mrs. Neelley. Section 13A-3-30, Code of Alabama, 1975, provides that duress is no defense “in a prosecution for murder or any killing of another under aggravated circumstances.” Alabama Code § 13A-3-30(d)(1) and (2) (1975). See also Arp v. State, 97 Ala. 5, 12 So. 301 (1893).
While the second, insanity, has been used as a defense in other cases dealing with battered women, see generally Eisenberg and Dillon, Medico-Legal Aspects of Representing the Battered Woman, 5 Okla.City U.L.Rev. 645, 654 (1980); Note, The Battered Wife’s Dilemma: To Kill or To Be Killed, 32 Hastings L.J. 895 (1981); Comment, Self-Defense: The Battered Woman Syndrome on Trial, 20 Cal.W.L.Rev. 485, 491, n. 73 (1984), there was absolutely no evidence — expert or lay — presented by the defense that Mrs. Neelley was legally insane under section 13A-3-1, Code of Alabama 1975. The following observation by the court in McKinnon v. State, 405 So.2d 78 (Ala.Cr.App.1981), applies with equal force here:
“Insanity which will excuse a crime, even under the new criminal code test, must be the result of a ‘mental disease or defect.’ § 13A-3-1, supra. Emotional insanity or temporary mania, not associated with a disease of the mind, does not constitute insanity.
Johnson v. State, 43 Ala.App. 224, 187 So.2d 281 (1966).
“In the present case, there was no evidence that appellant suffered from a ‘mental disease or defect.’ ” 405 So.2d at 80-81 (emphasis added).
The third legal theory, diminished capacity, is not recognized as a defense in Alabama. See Johnson v. State, supra. See generally Alabama Code 1975, § 13A-3-1 (Commentary). Some commentators have suggested an additional defense for crimes committed by those who suffer from the kind of abuse alleged by Mrs. Neelley. “One researcher suggests that the psycho-' logical effects of the Batteréd Spouse Syndrome can be compared to classic brainwashing”, see Steinmetz, Wife Beating: A Critique and Reformulation of Existing Theory, 6 Amer.Acad. of Psych. & Law Bull. 322, 327 (1978) (quoted in Comment, The Battered Spouse Syndrome as a Defense to a Homicide, 26 Vill.L.Rev. 105, 111 (1980)). See also Delgado, Ascription of Criminal States of Mind: Toward A Defense Theory For The Coercively Persuaded (“Brainwashed”) Defendant, 63 Minn.L.Rev. 1 (1978). The “brainwashing” defense has not achieved acceptance in any jurisdiction, see Dressier, Professor Delgado’s “Brainwashing” Defense: Courting A Determinist Legal System, 63 Minn.L. Rev. 335 (1979).
Finally, the only legal theory upon which Mrs. Neelley’s alleged treatment by her husband was relevant was the one the jury properly considered — mitigation of sentence. While the factfinders determined Mrs. Neelley guilty of the crime charged, they apparently considered the evidence of her abuse as indicative of one or more of the following mitigating circumstances outlined in § 13A-5-51, Code of Alabama 1975:
“(2) The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance;”
♦ * # # * *
“(5) The defendant acted under extreme duress or under the substantial domination of another person;
“(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.”
The brutal reality of the cruel abuse and calculated murder of thirteen-year-old Lisa Ann Millican stands in stark contrast to Mrs. Neelley’s allegations of her own abuse and mental condition. This Court agrees with the trial court that “[w]hile the mitigating circumstances and the jury’s recommendation of life without parole have weighed heavy in the court’s consideration, ... they are outweighed by the aggravating circumstances of this horrible crime.” Appendix III, p. III-14.
Finally, the sentence of death in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The death sentence for a murder/kidnapping was imposed in Callahan v. State, 471 So.2d 447 (Ala.Cr.App.1983), reversed on other grounds, Ex parte Callahan, 471 So.2d 463 (Ala.1985), and Heath v. State, 455 So.2d 898 (Ala.Cr.App.1983), affirmed, Ex parte Heath, 455 So.2d 905 (Ala.1984). Although a factor to consider, the fact that Alvin Neelley has not been prosecuted for his involvement in Miss Millican’s murder does not render Mrs. Neelley’s death sentence disproportionate. Ex parte Womack, 435 So.2d 766 (Ala.1983).
Mrs. Neelley’s own defense counsel described her as the “Bride of Frankenstein”. Her actions were overwhelmingly demonic and savagely inhuman, generating fear, horror, and shock.
After careful review and consideration, this Court concludes that Judith Ann Neelley received a fair trial and that the sentence of death is proper under the laws of Alabama and of the United States. The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
APPENDIX I
THE STATE OF ALABAMA V. JUDITH ANN NEELLEY
Case No. CC-82-276
Fort Payne, Alabama — March 12, 1983, 9:00 A.M.
(Trial resumed. Sixth day.)
(Jury not present.)
(Defendant and counsel present.)
Appearances:
For the State:
Honorable A. Richard Igou
District Attorney
Ninth Judicial Circuit
Fort Payne, Alabama
Honorable Michael O’Dell
Assistant District Attorney
Ninth Judicial Circuit
Fort Payne, Alabama
For the Defendant:
Honorable Robert B. French, Jr.
Honorable Stephen Bussman
Attorneys at Law
Fort Payne, Alabama
THE COURT: All right, gentlemen, the first thing we need to do this morning is to deal with the motion to suppress. As to the statement made by the defendant to Special Agent Bums and other officers on October 14th, 1982, in Murfreesboro, Tennessee, the Court makes the following findings: Number 1, the Court finds that prior to making the statement the defendant was properly advised of her constitutional rights as enumerated in Miranda. Number 2, the Court finds that the defendant made a voluntary and understanding waiver of those rights. Number 3, the Court finds that the defendant made a knowing and voluntary waiver of her right to have counsel present during the interview. Number 4, the Court finds that the defendant was advised on numerous occasions during the interview of her rights and that the interview would be terminated upon her request and that she voluntarily elected to continue the interview. Number 5, the Court finds that the defendant’s statement on that occasion was a product of rational intellect and a free will. Number 6, the Court finds that Attorney Bill Burton did not represent the defendant in connection with the criminal offense being investigated by Special Agent Bums and the other officers conducting the interview and that the defendant did not request to have an attorney present during the interview; therefore, the Court finds that the refusal to admit Attorney Burton to the interview room was not an interference with the attorney/client relationship. To the extent, however, that the defendant’s statement made on that occasion contains anything about the offense with which she was charged in Murfreesboro, Tennessee, that portion of the statement is inadmissible, because, clearly, Mr. Burton was representing her with regard to those charges. As to the statement made by the defendant to Investigator Danny Smith on October 15, 1981, in Fort Payne, the Court makes the following findings: Number 1, the Court finds that prior to making the statement the defendant was properly advised of her constitutional rights as enumerated in Miranda. Number 2, the Court finds that the defendant made a voluntary and understanding waiver of those rights. Number 3, the Court finds that while there was a remark by Investigator Smith that the information he sought would be related to the Judge for consideration in setting bail, the remark did not constitute a promise or inducement for the defendant making the statement. Number 4, the Court finds that while there was a remark by Investigator Smith about “maybe working out something” whereby the defendant could see her husband, the remark was inconclusive and indefinite and did not constitute a promise or inducement for the defendant making the statement. Number 5, the Court finds that the defendant’s statement was a product of rational intellect and a free will. Recognizing that a confession is presumed to be involuntary, the Court, however, finds that there is sufficient evidence to rebut that presumption as to each of the confessions in question. Accordingly, the motion to suppress is denied, and the State may offer the statements as evidence for the jury to consider with the exception of any matters relating to the offense charged in Murfreesboro, Tennessee.
APPENDIX II
STATE OF ALABAMA, Plaintiff VS. JUDITH ANN NEELLEY, Defendant
IN THE CIRCUIT COURT OF DEKALB COUNTY, ALABAMA CASE NUMBER CC-82-276
ORDER
The defendant filed a motion for new trial, and evidence was presented on the motion at hearings before the court on June 21,1983 and July 1,1983. The motion is submitted to the court on the evidence, a brief filed by the defendant on August 8, 1983, and the district attorney’s response thereto.
I.
The first issue raised by the defendant’s motion for new trial is whether the court erred by admitting into evidence two out-of-court confessions made by the defendant to law enforcement officers while she was in custody.
The first confession was made by the defendant while she was incarcerated at the Rutherford County jail in Murfreesboro, Tennessee on forged money order charges. Upon learning that the defendant was incarcerated, an F.B.I. agent from Rome, Georgia and other law enforcement officers investigating the murder of Lisa Ann Millican went to Murfreesboro and interviewed the defendant on October 14, 1982. During the interview, the defendant confessed to the murder of Lisa Millican and related other incriminating information about events leading up to the murder and events which followed.
A Murfreesboro attorney, Bill Burton, had been retained by the defendant’s husband to represent the defendant on the forged money order charges, and the attorney had accompanied the defendant to a preliminary hearing on such charges a day or two before October 14. While law enforcement officers were interviewing the defendant, attorney Burton appeared in the hallway outside the interview room and requested that he be allowed to enter the room where the interview was being conducted, but his request was denied.
The defendant contends that this denial, coupled with the fact that she was not told of the attorney’s availability, made the defendant's waiver of her right to counsel involuntary and her confession inadmissible.
The court makes the following findings of fact regarding the defendant’s statement of October 14, 1982:
a. Prior to making the statement, the defendant was properly advised of her constitutional rights as enumerated in Miranda.
b. The defendant made a voluntary and understanding waiver of her constitutional rights including her right to have counsel present during the interview.
c. The defendant was advised on numerous occasions during the interview of her constitutional rights and that the interview would be terminated upon her request, and she voluntarily elected to continue the interview.
d. The defendant’s statements during the interview were the product of a rational intellect and a free will.
e. Attorney Bill Burton did not represent the defendant in connection with the murder of Lisa Millican, the offense about which the defendant was being interviewed, and the refusal to admit him into the interview room was not an interference with the attorney-client relationship.
f. The defendant did not request to have attorney Burton or any other attorney present during the interview.
g. There were no threats, trickery or conjolery practiced by law enforcement officers during the course of the interview, and there was no improper influence, intimidation, coercion or other inducement made to obtain the statement.
h. Considering the totality of the circumstances, the confession was voluntarily made.
The defendant made an additional statement to Investigator Danny Smith on October 15, 1982 after being charged with the murder of Lisa Millican and returned to Port Payne, Alabama. This statement repeated much of the information related by the defendant in the earlier interview but added some details not furnished earlier.
The defendant contends that this statement was a continuation of the interview which had been conducted the night before in Murfreesboro, and that if the first confession was involuntary, then the second one fails as well.
The court makes the following findings of fact regarding the defendant’s statement of October 15, 1982:
a. Prior to making the statement, the defendant was properly advised of her constitutional rights as enumerated in Miranda.
b. The defendant made a voluntary and understanding waiver of her constitutional rights.
c. There were no threats, trickery or conjolery practiced by law enforcement officers during the course of the interview, and there was no improper influence, intimidation, coercion or other inducement made to obtain the statement.
d. The defendant’s confession was the product of a rational intellect and a free will.
e. Considering the totality of the circumstances, the defendant’s confession was voluntarily made.
The defendant took the witness stand at her trial and admitted that she killed Lisa Millican. The primary difference between her trial testimony and her out-of-court confessions was the motivation she expressed for the killing. In both her trial testimony and her out-of-court confessions, however, she admitted that she shot Lisa Millican and threw her body into a deep canyon after efforts to kill her by injections of liquid drain cleaner failed.
If a defendant takes the stand and admits facts essentially the same as those contained in an out-of-court confession, the defendant cannot complain that the confession was illegally obtained and erroneously admitted into evidence. Thomas v. State, 373 So.2d 1149 (Ala.Cr.App.1979). It is the judgment of this court that even if the confessions were involuntarily made as contended by the defendant, the error of their admission into evidence was cured by the defendant’s taking the witness stand and admitting facts essentially the same as those contained in the out-of-court confessions.
II.
The court finds that the juror, E.H., was not biased and was not guilty of misconduct prejudicial to the defendant. The court is convinced from the evidence presented at the hearing on defendant’s motion for new trial and its own knowledge of events occurring in the courtroom during the trial that the juror did not mouth the words “object, object” to the prosecution during defense counsel’s cross-examination of a State’s witness. The court finds that the incident on which this allegation is based was, in fact, an effort on the part of the juror to get the attention of the bailiff, Martha McPherson, who was seated near the district attorney.
This allegation of misconduct by the juror was first made by defense counsel at the conclusion of testimony on the day of the alleged incident, at which time, counsel requested that the juror be replaced by an alternate. Before ruling on the request, the court offered defense counsel an opportunity to present evidence in support of the allegation but the offer was declined. The court did not observe the alleged misconduct charged by defense counsel and, therefore, there was absolutely no evidence before the court which would justify removal of the juror; nevertheless, the court reserved a ruling on the request until immediately before submission of the case to the jury so that the court might direct its attention to the juror’s demeanor and conduct during that portion of the trial remaining prior to submission.
Immediately prior to submission of the case to the jury, the court denied the request that Mrs. E.H. be replaced. The denial was accompanied by the following statement by the court:
I have observed her very carefully today during the course of these arguments, and I have found her, for the most part, to be very attentive to both your argument (defense counsel’s) as well as the State’s argument. There were times when she looked away and didn’t keep her eyes on either of you, but I think for the most part, I was convinced from her demeanor today that she was appropriately attentive.
The court observed no communication, verbal or non-verbal, between the juror and prosecutors or between the juror and courtroom spectators. The court observed nothing during this lengthy trial which would necessitate or support a finding of misconduct or bias on the part of the juror or that would require her replacement by an alternate juror.
The defendant’s allegation that the juror E.H. inappropriately usurped the position of jury foreman is without merit. The allegation is unsupported by the evidence, but even if the evidence supported the allegation, such conduct would not be an indication of bias or corruption in performance of the juror’s duty, nor would it indicate that the jury’s verdict was wrongfully influenced. See Carr v. Irons, 288 Ala. 211, 259 So.2d 240 (1972). Also, it is a settled principle of law that conduct and remarks of jurors during deliberation are not such “extraneous facts” as will be permitted to impeach a jury’s verdict.
The defendant ^contends that the juror E.H. improperly responded to two voir dire questions propounded by defense counsel, the first of the two questions being as follows:
Attorney French: I talked with you earlier about nonviolent crimes and about violent crimes that had perhaps affected you. I want to ask you, just in case I missed it — I’m not even going to talk about crime. I'm going to talk about criminal acts, something nobody was prosecuted for. Have any of you or any of your close relatives or close friends ever been involved in a criminal act, and I’ll exclude Terry on this. I’m talking about a criminal act that has affected your life.
The juror E.H. did not offer any response to this question. At the hearing on motion for new trial, it was established that Mrs. E.H. had been charged in the District Court of DeKalb County with five cases of worthless checks, all of which were pending at the time of the voir dire examination. Mrs. E.H. testified at the hearing on motion for new trial that although these charges were placed against her, she never believed she had committed a criminal act and that her attorney had advised her that writing the checks was not a criminal act because she lacked criminal intent.
Mrs. E.H.’ attorney testified that prior to Mrs. E.H.’ involvement in the Neelley trial, he had negotiated a dismissal of the cases against Mrs. E.H. whereby she would pay restitution and court cost, and that the cases remained pending at the time of the Neelley trial solely for payment by Mrs. E.H. of the sums due.
Without regard to Mrs. E.H.’ belief about whether she had committed a criminal act by writing worthless checks, a response to defense counsel’s question which would reveal the pending charges was not required by Mrs. E.H. because of the context in which the question was asked. The question was prefaced by a reference to an earlier series of questions which sought to elicit if any of the venire had been the victim of criminal activity. In this context, the question set forth above appeared to be calling for responses from any member of the venire who had been the victim of unprosecuted criminal ac tivity. Evidence that this was the intent of the question is found in the fact that defense counsel excluded a member of the venire named “Terry” from the question. In the earlier series of questions, this venireman had revealed that his father was killed by a drunken driver.
Even if the question is construed to call for responses from members of the venire about criminal acts in which they have engaged, it is clear that the question has reference only to criminal acts for which nobody was prosecuted. Because Mrs. E.H.’ writing of worthless checks was conduct for which she was prosecuted, such conduct and the resultant charges were not within the scope of the question. The court concludes that the question set forth above did not reasonably seek to elicit the information which defendant now contends was improperly withheld by the juror E.H.
The second question which the defendant contends was answered improperly by juror E.H. is as follows:
Attorney French: Mr. Igou, (the district attorney), asked you if you knew of myself and the others as part of the defense team. Let me just ask you if you know Richard and Michael, other than Mr. Dilbeck? Richard Igou and Michael O’Dell (the deputy district attorney), do any of you know them?
Mrs. E.H. gave no response to this question. The defendant contends that Mrs. E.H. knew the State’s prosecutors as a result of the worthless check charges pending against her and the negotiations which occurred in connection with the disposition of those charges. The evidence, however, does not support this contention. Mrs. E.H.’ attorney testified that he handled the negotiations with the district attorney’s office and that Mrs. E.H. was not present at the time and had no personal contact with either of the prosecutors. Mrs. E.H. testified that she was not acquainted with either of the prosecutors pri- or to the commencement of the Neelley trial, and there is no evidence to the contrary. The court finds that Mrs. E.H. was not acquainted with the prosecutors before the trial and that her lack of response to defense counsel’s question was not improper.
The court finds no probable prejudice resulted to the defendant from the responses or lack of responses by juror E.H. during the voir dire examination by counsel.
Further, the defendant alleges that the prosecutors wrongfully withheld from defense counsel their knowledge of Mrs. E.H.’ pending cases. Assuming arguendo that the prosecutors had a duty to make such disclosure, the court finds that there was no breach of that duty because the information was not brought to their attention until after the jury was struck and impaneled. This finding is based on the testimony of Deputy District Attorney Michael O’Dell that he did not connect juror E.H. with the worthless check charges until it was called to his attention by an employee of the clerk’s office after the jury was struck.
III.
The defendant contends that it was error for the court to allow evidence of the following events which occurred subsequent to the killing of Lisa Ann Millican: (a) that the defendant shot J.H., (b) that the defendant shot and killed Janice Chapman, and (c) that the defendant attempted to lure other potential victims.
The evidence in this case established that the abduction of Lisa Ann Millican was part of a bizarre scheme whereby the defendant attempted to lure girls and young women into the car with her for the ultimate purpose of making them available to her husband for sex. For several days immediately prior to Lisa Millican’s abduction, the defendant and her husband drove up and down the streets of Rome, Georgia in separate automobiles looking for girls who would be suitable. When the defendant’s husband would see a suitable girl, he would communicate with the defendant by CB radio, and the defendant would invite the girl to go riding around with her. Numerous girls refused the defendant’s invitation; her first successful pick-up was Lisa Millican. After Lisa Millican was killed, the defendant and her husband went back to Rome and continued to look for girls. Five days after the death of Lisa Millican, the defendant picked up a young woman named Janice Chapman and her common-law husband, J.H., from a street in Rome. Later that night, the defendant shot J.H. in the back and left him for dead — although he survived. The defendant and her husband took Janice Chapman to a motel where the husband engaged in sex with Janice. The next day, the defendant killed Janice, shooting her once in the back and twice in the chest. Less than a week thereafter, the defendant picked up yet another young woman who also became a sexual companion for her husband.
It is settled law that evidence of the accused’s commission of another crime is admissible if it tends to prove that the crime presently charged was committed pursuant to a single plan, design, scheme or system. The evidence of which the defendant complains was admitted for that purpose and its admissibility clearly is within the scope of the stated rule.
IV.
An additional ground of the defendant’s motion is her assertion that there were emotional outbursts in the courtroom during the trial which, along with comments from spectators, prejudiced jurors against the defendant. An emotional outburst from spectators occurred on one occasion but the jury was not in the courtroom at that time. The outburst was in the form of applause from certain members of the audience during a suppression hearing from which the jurors had been excluded. The court finds that no prejudice to the defendant resulted from this occurrence.
Two media representatives who covered the trial and three other spectators testified at the hearing on motion for new trial that they overheard prejudicial remarks made by individual courtroom spectators at various times during the trial which were loud enough for jurors to hear. The court did not hear the remarks and concludes that any such remarks were not heard by the jury. This conclusion is based upon the court’s observations during the trial of which it takes judicial notice, the testimony of jurors who testified at the hearing on motion for new trial that they did not hear the remarks and, further, upon the fact that spectator comments were less likely to be heard by the jury than by media representatives and other spectators because of the physical layout of the courtroom.
Because public interest in this trial was high and spectator seats were filled every day with additional spectators waiting outside the courtroom to enter, the court employed procedures designed to prevent spectator interference with the fair and orderly conduct of the trial. The following are some of the special procedures:
a. Spectators were allowed in the courtroom only to the extent that there were seats to accommodate them.
b. Law enforcement personnel provided security at the door of the courtroom to regulate the entrance by spectators.
c. The court routinely instructed spectators that they should not talk aloud or whisper while the jury was in the courtroom.
d. Law enforcement personnel were stationed in the spectator section, with orders from the court to remove spectators who did not comply with the court’s instructions.
e. A row of seats across the front of the spectator section was reserved for news media representatives; thus the media representatives sat between the jury and the spectators.
The court adopted early in the trial a firm approach to spectator behavior, and gave close attention to the spectator section during much of the trial when other matters did not require the court’s attention. On one occasion, the court privately reprimanded a spectator who sat near the back of the courtroom for making facial expressions in response to the testimony of a witness. This incident was not observed by the jury and at no time during the trial did the court see or hear any misconduct from a spectator which appeared to have been observed by a juror. The spectator section was orderly at all times, with the exception of the one emotional outburst mentioned above which occurred when the jury was not in the courtroom, and the court finds that the defendant was not prejudiced by spectator conduct;
V.
In support of her motion for new trial, the defendant offered the testimony of Dr. Margaret Nichols, a clinical psychologist, experienced in counseling battered women. The essence of Dr. Nichols’ testimony was that the defendant’s behavior pattern fits the battered woman syndrome, and that the defendant was, in Dr. Nichols’ judgment, totally under the control of her husband at the time she killed Lisa Millican. These conclusions were based upon an interview with the defendant conducted by Dr. Nichols on the day before the hearing and upon relevant information supplied by the defendant’s counsel.
For the court to grant a new trial on the basis of newly discovered evidence, the defendant must meet the following requirements: (1) that the evidence is such as will probably change the result if a new trial is granted, (2) that the evidence has been discovered since the trial, (3) that it could not have been discovered before trial by the exercise of due diligence (4) that it is material to the issues, and (5) that it is not merely cumulative or impeaching.
The court finds that Dr. Nichols’ testimony is not such evidence as would probably change the result in a new trial, and further finds that evidence from an expert witness in the same field as Dr. Nichols could have been discovered before trial by the exercise of due diligence. It follows that Dr. Nichols’ testimony is insufficient evidence on which to grant a new trial.
VI.
The court has examined all the grounds asserted by the defendant in her motion and finds that none of them merits the granting of a new trial. It is the judgment of the court that the defendant received a fair trial free from error prejudicial to her rights and, accordingly, IT IS ADJUDGED AND DECREED that the motion for new trial, as amended, is denied.
DATED SEPTEMBER 6, 1983.
/s/Randall L. Cole CIRCUIT JUDGE
Copy of this order to Honorable A. Richard Igou, Honorable Robert B. French, Jr. and Honorable Stephen P. Bussman.
APPENDIX III
STATE OF ALABAMA, Plaintiff VS. JUDITH ANN NEELLEY, Defendant
IN THE CIRCUIT COURT OF DEKALB COUNTY, ALABAMA
CASE NUMBER CC 82 276
SENTENCING ORDER
The defendant was charged by indictment with the murder of Lisa Ann Millican during a kidnapping in the first degree, a capital offense. A jury returned a verdict on March 22, 1983 finding the defendant guilty of the capital offense, whereupon, the court adjudged the defendant guilty in accordance with the jury’s verdict.
Following the adjudication of guilt, a separate sentence hearing was conducted before the same jury, and the jury returned a recommendation that the defendant be sentenced to life without parole.
The court has ordered and received a written pre-sentence investigation report and has conducted an additional sentence hearing pursuant to Section 13A-5-47, Code of Alabama (Recomp.1975). At the sentence hearing, the State, through its district attorney, urged that the court fix the defendant’s punishment at death. The defendant, through her counsel, argued that the court should fix her punishment, in accordance with the jury’s recommendation, at life in prison without parole.
FINDING OF FACTS SUMMARIZING THE CRIME AND THE DEFENDANT’S PARTICIPATION IN IT
The body of Lisa Ann Millican, age 13, was found in a gorge known as Little River Canyon near Fort Payne on September 29, 1982. Lisa was a resident of the Ethel Harpst Home, a Methodist home for neglected children located in Cedartown, Georgia.
Lisa and five other girls from the home were taken by a house parent on an outing to Riverbend Mall in Rome, Georgia on September 25, 1982. While at the mall, Lisa became separated from the others. During this separation, she was abducted by the defendant, who asked Lisa to go “riding around.” Lisa hesitated at first, but then agreed. The events which followed the abduction led to the death of Lisa when the defendant shot her in the back on September 28, 1982, and threw her body into the canyon.
The abduction of Lisa Ann Millican was part of a bizarre scheme whereby the defendant attempted to lure girls and young women into the car with her for the ultimate purpose of making them available to her husband, Alvin Neelley, for sex with him. For several days immediately prior to Lisa’s abduction, the defendant and Alvin drove up and down Rome streets in separate automobiles looking for girls who would be suitable. When Alvin would see one who appealed to him, he would communicate with the defendant by C-B radio, and the defendant would invite the girl to go riding around with her. Numerous girls refused the defendant’s invitation; her first successful pick-up was Lisa Ann Millican.
The defendant took Lisa to a motel in Franklin, Georgia where she tried to persuade Lisa to submit to sex with Alvin, but Lisa resisted. Finally, Alvin told Lisa that if she did not submit to sex, the defendant would kill her. Following this threat, Alvin engaged in sex with Lisa, and later that night, Lisa was handcuffed to the bed to prevent her escape.
The next day, the defendant and Alvin, traveling in two cars, took Lisa with them to Cleveland, Tennessee where they picked up their two-year-old twins who were being cared for by Alvin’s mother. Later that day, they traveled to Scottsboro, Alabama where they rented a motel room. Shortly after their arrival at the motel, the defendant hit Lisa in the head several times with a slapjack in an attempt to render her unconscious, but she was unsuccessful in achieving that result. Alvin then had sex with Lisa, and afterward Lisa slept overnight on the floor, unclothed, and handcuffed to the bed.
The following day, Alvin had sex with Lisa twice more despite her cries and pleas that he stop. The defendant was present during these sexual encounters and at one point during the day, she handcuffed Lisa to the plumbing in the bathroom and interrogated her about a man she had appeared to know at a dairy bar near the motel.
The next morning, Lisa was taken to Little River Canyon by the defendant where the defendant instructed Lisa to lie face down and place her hands around a tree. The defendant then handcuffed Lisa’s hands. She explained to Lisa that she was going to give her a shot that would make her fall asleep and that when she waked up, Lisa would be free to go. Using a needle and syringe, the defendant injected Lisa in the neck with liquid drain cleaner. When Lisa did not die in five minutes, the defendant injected her again in the neck. She injected Lisa four additional times, twice in the arms and twice in the buttocks, waiting about five minutes after each injection for Lisa to die. Twice during the infliction of these injections, Lisa requested to get up and “use the bathroom” in the woods. She was allowed to do so, and each time she returned and resumed her position on the ground with her hands around the tree.
Following the last injection, the defendant instructed Lisa to walk around for awhile to hasten the work of the poison in her body. When it finally appeared that Lisa was not going to die from the drain cleaner, the defendant marched Lisa to the rim of the canyon to shoot her in the back in a manner that would cause her body to fall into the canyon. Lisa begged to go back to the Harpst Home and promised not to tell what had happened. The defendant told Lisa to be quiet and then shot her in the back. Lisa fell backward toward the defendant instead of falling into the canyon. The defendant picked up the body and, using her knee, propelled it into the canyon.
During the defendant’s trial testimony, she testified that Alvin was present at the canyon directing her every action. However, in an out-of-court statement made shortly after her arrest, the defendant stated that Alvin was not present at the canyon.
Five days after the death of Lisa Ann Millican, the defendant picked up a young woman named Janice Chapman and her common-law husband, J.H., from a street in Rome. Later that night, the defendant shot J.H. in the back and left him for dead. He survived, however, and was present at the trial to testify to the incident.
The defendant and Alvin took Janice Chapman to a motel in Rome where Alvin engaged in sex with Janice. The next day, the defendant killed Janice Chapman, shooting her once in the back and twice in the chest. During the defendant’s trial testimony, she testified that Alvin was present during the shooting of J.H. and Janice Chapman and that he directed her to shoot them; however, in her out-of-court statement given shortly after her arrest, she stated that Alvin was present when she shot J.H. but that he was not present when she killed Janice Chapman.
On October 9, 1982, the day before the defendant’s arrest, she picked up another young woman in Nashville, Tennessee who was present with the defendant and Alvin in a motel room in Murfreesboro, Tennessee on October 10, 1982 when the defendant was arrested on a bad check charge. Later, this woman was released by Alvin unharmed.
Alvin was arrested in Murfreesboro on October 13, 1982, also on a bad check charge. While the defendant and Alvin were in custody on the bad check charges, additional charges were placed against them arising from the murders of Lisa Ann Millican and Janice Chapman, and the shooting of J.H.
FINDINGS CONCERNING THE EXISTENCE OR NON-EXISTENCE OF AGGRAVATING CIRCUMSTANCES
In compliance with the requirements of the law that the trial court shall enter specific findings concerning the existence or non-existence of each aggravating circumstance enumerated by statute, the court finds that none of the aggravating circumstances enumerated by statute were proved beyond a reasonable doubt in the proceedings before this court except the following, which the court finds were proved beyond a reasonable doubt:
1. The capital offense was committed while the defendant was engaged in kidnapping. The jury’s verdict establishes the existence of this aggravating circumstance, and the verdict is supported by the evidence.
2. The capital offense was especially heinous, atrocious and cruel compared to other capital offenses. The court reaches the conclusion that this aggravating circumstance exists based upon uncontrovert-ed evidence of the following:
a. The victim of the crime was a child, age 13.
b. Repeatedly, the child was abused and violated sexually causing her enormous fright and pain. While the evidence is insufficient to establish that the defendant participated in sex acts upon the child, she was an accomplice to the sexual abuse perpetrated upon the child by Alvin Neelley.
c. The defendant inflicted pain and suffering upon the child by hitting her on the head with a slapjack in an attempt to knock her unconscious.
d. The defendant physically restrained the child much of the time following her abduction by the use of handcuffs.
e. The defendant made the child lie on the ground with her hands handcuffed around a tree while the defendant injected her six times with liquid drain cleaner.
f. The defendant marched the child to the rim of the deep canyon, with the child begging to be released, where the defendant shot her in the back.
By any standard acceptable to civilized society, this crime was extremely wicked and shockingly evil. It was perpetrated with a design to inflict a high degree of pain with utter indifference to the suffering of the victim. The court recognizes that all capital offenses are heinous, atrocious and cruel to some extent, but the degree of heinousness, atrociousness and cruelty which characterizes this offense exceeds that which is common to all capital offenses.
FINDINGS CONCERNING THE EXISTENCE OR NON-EXISTENCE OF MITIGATING CIRCUMSTANCES
I.
In compliance with the statutory requirement that the trial court enter specific findings concerning the existence or non-existence of each mitigating circumstance enumerated by statute, the court finds that none of the following mitigating circumstances exist in this case:
1. That the defendant has no significant history of prior criminal activity. The defendant testified to a significant history of criminal conduct. When she was 16 years of age, she robbed a woman of her purse at gunpoint. As a result of this offense, she was committed to the Georgia Youth Development Center, and her husband, Alvin, who was an accomplice to the robbery, was sentenced to a term in the Georgia State Penitentiary.
The defendant was released from the Georgia Youth Development Center in December, 1981 and Alvin was released from the penitentiary several months later. The defendant testified that upon Alvin’s release, he was obsessed with the notion that she had been sexually abused by employees at the Youth Development Centers in Rome and Macon. To avenge the alleged wrong, Alvin and the defendant set out to kill or terrorize employees of the YDC. Pursuant to this objective, they shot into the house of one employee and attempted to firebomb the automobile of another in Rome. In Macon, the defendant attempted to lure YDC employees to a motel room where Alvin was prepared to kill them. The defendant was unsuccessful in luring any employees to the motel, and none were harmed.
Additional criminal activity by the defendant, according to her own testimony, includes writing bad checks, raising the amounts on money orders, stealing checks from post office boxes and cashing them with false identification, and stealing from convenience stores where Alvin was employed.
2. That the capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. When the defendant was arraigned on December 17, 1982, her counsel requested that the defendant be committed to Bryce Hospital for psychiatric examination and evaluation. The court granted the request, and the defendant thereafter underwent psychiatric examination and evaluation at Bryce Hospital. Dr. Alexander Salillas, a staff psychiatrist at Taylor Hardin Secure Medical Facility and a consultant at Bryce, testified that as a result of his examination of the defendant, he found no mental disease or defect and that, in his opinion, she knew right from wrong at the time of the offense and that she acted with deliberation and premeditation.
While the court recognizes that this mitigating circumstance contemplates a disturbance of the mind which might exist separate and apart from a mental disease or defect, and that the testimony of the psychiatrist is, by no means, conclusive, the court finds from a consideration of all the evidence that the defendant was not under the influence of extreme mental or emotional disturbance.
3. That the victim was a participant in the defendant’s conduct or consented to it. There is no support for this mitigating circumstance. Although Lisa Ann Millican initially agreed to go with the defendant when the defendant picked her up at the mall in Rome, the fact that Lisa was less than 16 years old and that the Harpst Home, which had legal custody of her, had not acquiesced to her being taken by the defendant, makes any consent given by Lisa legally ineffectual. Any consent given by the child to the acts of violence and abuse committed upon her was the result of threats or false promises and provides no support for this mitigating circumstance.
4. That the defendant was an accomplice in the capital offense committed by another person and her participation was relatively minor. The evidence is un-controverted that the defendant abducted Lisa Ann Millican, that the defendant injected her six times with liquid drain cleaners, and that the defendant shot her in the back and threw her body into the canyon. Although there is evidence that the defendant’s husband, Alvin, was also involved in this criminal conduct, there is no support for a finding that the defendant’s participation was relatively minor.
5. That the defendant acted under extreme duress or under the substantial influence of another person. The defendant’s primary contention throughout the trial and the sentence hearings was that she had become completely submissive to the will of her husband, Alvin, and that he exercised total control over her. Perhaps the strongest support for this contention is found in the following:
a. testimony by Alvin’s former wife that Alvin dominated their relationship and imposed his will upon her;
b. evidence including pictures of the defendant’s bruised body, that Alvin beat the defendant frequently;
c. letters written by Alvin while he was incarcerated in the penitentiary which portray him as a vile and dominant husband; and
d. the fact that the defendant had no record of criminal activity prior to her association with Alvin Neelley.
The evidence cited above, together with the defendant’s testimony, convinces the court that the defendant was substantially influenced by her husband, but the court concludes that the husband’s influence did not constitute extreme duress or substantial domination.
The defendant is an intelligent person capable of making independent choices. The evidence is substantial that she made a willing choice to follow her husband’s influence rather than to depart from it. There were numerous opportunities for the defendant to break with her husband and seek help had she felt the need or been so inclined. These opportunities were enhanced by the fact that the defendant was armed and traveling in a separate vehicle during most of their exploits. Ultimately, the defendant chose, rather than to make the break or turn on her husband, to brutally murder Lisa Ann Millican.
The court finds that the defendant was not brainwashed and that she retained her will and her capacity to make independent choices.
6.That the capacity of the defendant to appreciate the criminality of her conduct or to conform her conduct to the requirements of law was substantially impaired. The defendant entered a plea of not guilty by reason of mental disease or defect. With regard to this defense, the court instructed the jury that a person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, such person lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. By its verdict of guilt, the jury found the evidence insufficient to support the plea of insanity, and the jury’s finding is supported by the evidence. While the court recognizes that this mitigating circumstance contemplates impaired capacity which might exist separate and apart from a mental disease or defect, the court finds from a consideration of Dr. Salillas’ testimony and the evidence as a whole that this mitigating circumstance does not exist.
II.
The court finds that the following mitigating circumstance enumerated by statute does exist in this case:
1. The age of the defendant at the time of the crime. The defendant was 18 years of age at the time she committed the capital offense of which she is convicted. While the court finds the defendant's age to be a mitigating circumstance, the court considers the weight to be given this circumstance lessened by the fact that the defendant, since a much earlier age, had adopted the lifestyle of an adult. She commenced a marital relationship with Alvin Neelley when she was age 15, and gave birth to twins when she was age 16. The criminal activity in which the defendant engaged was less akin to the behavior of a teenager and more akin to the conduct of a seasoned criminal.
III.
The court finds two additional mitigating circumstances not enumerated by the statute:
1. The defendant was substantially influenced by her husband. Although the court has heretofore found that the husband’s influence did not constitute extreme duress or substantial domination, it seems appropriate that such influence should be given weight as a mitigating circumstance.
2. The defendant voluntarily and intentionally set in motion the events which led to her arrest and the arrest of her husband, thus ending the reign of terror which they had perpetrated throughout three states. The defendant did this while at her mother’s house in Murfreesboro by instructing her mother to notify the police that she was in the area and could be arrested on bad check charges pending against her. In the defendant’s testimony, she could not explain what prompted her to give her mother these instructions, but it is fair to infer that conscience had a hand in it.
CONCLUSION
The court has carefully weighed the aggravating and mitigating circumstances which it finds to exist in this case, and has given consideration to the recommendation of the jury contained in its advisory verdict. While the mitigating circumstances and the jury’s recommendation of life without parole have weighed heavy in the court’s consideration, it is the judgment of this court that they are outweighed by the aggravating circumstances of this horrible crime. Accordingly, IT IS ORDERED, ADJUDGED, AND DECREED that the defendant shall be punished by death.
A formal sentencing entry shall be made by separate order.
DATED APRIL 18, 1983.
/s/Randall L. Cole CIRCUIT JUDGE
[OPINION BY BOWEN, Presiding Judge. type=rehearing]
ON REHEARING
BOWEN, Presiding Judge.
I
Mrs. Neelley claims that the war-rantless search of her mother’s home by the Tennessee authorities on the night of October 14, 1982 (during the time Mrs. Neelley was being interrogated) was illegal because her mother did not voluntarily consent to the search.
Initially, we question whether Mrs. Neelley has standing to raise this issue, see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Cochran v. State, [Ms. 6 Div. 886, April 24, 1984] (Ala.Cr.App.1984). See also Hilley v. State, 484 So.2d 476 (Ala.Cr.App.1985) (defendant held to have abandoned belongings stored at her mother-in-law’s house). Moreover, even if the issue is properly before us, the record clearly indicates that the search was a consensual one.
B.A., Mrs. Neelley’s mother, testified at the hearing on motion for new trial that on the evening of October 14, 1982, six or seven Murfreesboro police officers came to her home and asked to search the premises:
“Well, it was late in the afternoon. I’d say about five. It was getting, you know, kind of dark, not very. And David Grissom was there and there was a guy behind him in a suit and two car loads of men with guns and everything and badges, and they said they needed to search my house, and they didn’t tell me what for or anything, and I was scared anyway, you know. So, I told them to come on in and search and they did.... “They just asked if they could search my house. They said they could get a warrant, and I said, ‘What for’, and he didn’t say anything. He just said, ‘We need to search your home.’ So, I said, ‘Just go on in’, you know.” (R. 2404-05)
The Tennessee authorities were led by one David Grissom, whom B.A. said she knew “very well.” In response to the District Attorney’s cross-examination, B.A. testified:
“Q Are you frightened of David Grissom?
“A Oh, no, not him.
“Q Is he one of the men who came up there?
“A He came up there with them because he knows me.
“Q Did any of them threaten you in any way?
“A Oh, no. They, ah—
“Q Were they polite to you?
“A They were very polite. They didn’t disturb anything. When they searched they put everything back where it was originally.
“Q When they first came up and asked you if they could search, were they polite at that time?
“A Yes.
“Q And David Grissom, whom you knew and whom you were not afraid of, was with them?
“A That’s right.”
In our judgment, the foregoing evidence supports a finding that B.A.’s consent to search her home was freely and voluntarily given. As this court held, under similar facts, in Phillips v. State, 447 So.2d 1312, 1316 (Ala.Cr.App.1984), cert. denied, 471 U.S. 1019, 105 S.Ct. 2047, 85 L.Ed.2d 309 (1985), “[T]he appellant’s father gave consent for the search to be made of the premises in question and he in fact, being the owner, had the authority to do so.”
II
Mrs. Neelley insists that the misconduct of juror E.H. entitles her to a new trial. She claims that Juror E.H. was inattentive, glared at defense counsel, repeatedly smiled at the prosecution, mouthed the words “object, object” to the District Attorney during questioning of a witness by the defense, and usurped the role of foreperson of the jury. The trial judge held an extensive hearing on the foregoing allegations, and we have thoroughly reviewed the record of this hearing. We can only reiterate that the trial court heard the witnesses, observed their demeanor, and, in fact, observed Mrs. E.H.’s behavior as a juror throughout the trial, and, more specifically, toward the end of the trial when her alleged misconduct was called to the court’s attention. The trial court's finding that there was “nothing during this lengthy trial which would necessitate or support a finding of misconduct or bias on the part of the juror or that would require her replacement by an alternate juror” is supported y the record and will not be disturbed on appeal. See Adams v. State, 32 Ala.App. 367, 26 So.2d 216 (1946).
An additional allegation, which Mrs. Neelley maintains that we did not address thoroughly on initial deliverance of our opinion in this case, is that juror E.H. failed to respond to the following voir dire questions by defense counsel:
“I talked with you earlier about nonviolent crimes and about violent crimes that had perhaps affected you. I want to now ask you, just in case I missed it— I’m not even going to talk about crime. I’m just going to talk about criminal acts, something nobody was prosecuted for. Have any of you or any of your close relatives or close friends ever been involved in a criminal act ... I’m talking about a criminal act that has affected your life.”
“Mr. Igou [the District Attorney], asked you if you knew of myself and the others as part of the defense team. Let me just ask you if you know Richard and Michael ... Richard Igou and Michael O’Dell [the deputy district attorney], do any of you know them?”
Testimony taken at the hearing on motion for new trial established that at the time of voir dire examination, Mrs. E.H. had five criminal charges of issuing worthless checks pending in the District Court of DeKalb County. Prior to Mrs. E.H.’s jury service in the Neelley trial, her attorney for the worthless check cases had negotiated an agreement with deputy district attorney Michael O’Dell whereby Mrs. E.H. would have 90 days to pay restitution and court costs, and the criminal charges against her would be dismissed.
Mrs. E.H. testified that she did not respond to the first voir dire question because, although she was aware she had worthless check charges pending against her, she did not believe herself guilty of a crime in issuing the checks since her attorney had told her that, under the law, she had no criminal intent. She explained that the bad checks arose during a period when her husband was out of town and both he and she were writing checks without full knowledge of what the other was doing. Mrs. E.H. did not respond to the next voir dire question because all negotiations regarding the cases against her were conducted between her attorney and the assistant prosecutor. She never met Michael O’Dell and had no idea he was connected with her cases in District Court.
Deputy district attorney Michael O’Dell testified that, at the time of voir dire examination of the Neelley venire, he had no recollection of having negotiated an agreement regarding worthless check charges with the attorney for Mrs. E.H. Although O’Dell acknowledged that he later learned Mrs. E.H.’s charges were pending at the time of the Neelley trial and were dismissed shortly after the conclusion of the Neelley case, O’Dell testified that, for all practical purposes, the cases had already been disposed of prior to the Neelley case. O’Dell stated that he considered the cases completed as of the date he concluded his agreement with Mrs. E.H.’s attorney. The cases remained open for 90 days according to O’Dell simply for payment by Mrs. E.H.
Mrs. Neelley claims that the State’s failure to disclose the information about Mrs. E.H., once it had knowledge of the juror’s pending criminal charges, constitutes suppression of facts prejudicial to the defense. Initially we note that, even had Mr. O’Dell remembered Mrs. E.H.’s pending criminal cases at the time of voir dire questioning, he would have had no absolute duty to disclose the information to the defense. See generally, Annot., 86 A.L.R.3d 571 (1978) (disclosure to defense counsel of prosecution information regarding a prospective juror’s criminal record not required in the absence of a showing of prejudice to defendant’s rights).
O’Dell testified that, once he learned of Mrs. E.H.’s pending criminal cases, he was very concerned that she had been left on the jury. He stated that if he had remembered the information earlier he would have used one of the State’s peremp-. tory strikes to eliminate Mrs. E.H. from the jury. O’Dell said that generally he would consider anyone with pending criminal charges a juror unfavorable to the State.
Because there was no purposeful withholding of information material to the defense, cf. Toole v. State, 146 Ga.App. 305, 246 S.E.2d 338 (1978) (disclosure of prior voting patterns of jurors not discoverable as evidence “exculpatory” to the defense), and because Mrs. E.H.’s criminal cases could be construed to place her in a posture favorable to either the defense or the prosecution, we do not believe the State’s failure to divulge the information here constitutes reversible error. It would be pure speculation on our part to assume, as Mrs. Neelley contends, that a juror with pending criminal charges is more conviction prone. The likelihood is just as great that the juror would be sympathetic to the defense. Under the circumstances, we must agree with the trial court’s finding that Mrs. E.H.’s failure to respond to the voir dire questions did not result in probable prejudice to the accused. Ex parte O’Leary, supra.
OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.
All Judges concur.
Ex parte Judith Ann NEELLEY. (In re Judith Ann NEELLEY v. STATE).
No. 84-872.
Supreme Court of Alabama.
June 27, 1986.
Rehearing Denied Sept. 19, 1986.
Robert B. French, Jr., Fort Payne, for petitioner.
Charles A. Graddick, Atty. Gen. and Ri-vard Melson and William D. Little, Asst. Attys. Gen., for respondent.
[OPINION BY BEATTY, Justice. type=majority]
BEATTY, Justice.
Certiorari was granted in this case under Rule 39(c), A.R.App.P. The facts are treated extensively in the opinion of the Court of Criminal Appeals. On appeal to that court, the petitioner’s conviction of the capital offense of murder during a kidnapping, Code of 1975, § 13A-5-40(a)(1), and her subsequent sentence by the trial court to death by electrocution, were affirmed. Neelley v. State, 494 So.2d 669 (Ala.Crim.App.1985).
Petitioner has raised before this Court the same issues she presented to the Court of Criminal Appeals. Having reviewed the matters presented by the briefs, oral argument, and the record, this Court has concluded that the decision of the Court of Criminal Appeals must be affirmed. Moreover, only certain aspects of that decision need be addressed in this opinion.
I.
Whether the failure or refusal to inform the petitioner that a lawyer was in the building in which she was being interrogated vitiated her confession.
The Court of Criminal Appeals did not decide this issue, holding that any error in the admission of the confession in question was harmless error. However, following the grant of certiorari by this Court, the United States Supreme Court decided Moran v. Burbine, — U.S. -, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), holding that neither Fifth nor Sixth Amendment rights are violated when police authorities do not inform a suspect of an attorney’s efforts to contact the suspect. In so holding, that Court made the following pertinent observations at — U.S. -, 106 S.Ct. 1143:
“At the outset, while we share respondent’s distaste for the deliberate misleading of an officer of the court, reading Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)], to forbid police deception of an attorney ‘would cut [the decision] completely loose from its own explicitly stated rationale.’ Beckwith v. United States, 425 U.S. 341, 345, 96 S.Ct. 1612, 1615, 48 L.Ed.2d 1 (1976). As is now well established, ‘[t]he ... Miranda warnings are “not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect’s] right against compulsory self-incrimination [is] protected.’” New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984), quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). Their objective is not to mold police conduct for its own sake. Nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials wholly unconnected to any federal right or privilege. The purpose of the Miranda warnings instead is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgement of the suspect’s Fifth Amendment rights. Clearly, a rule that focuses on how the police treat an attorney — conduct that has no relevance at all to the degree of compulsion experienced by the defendant during interrogation — would ignore both Miranda’s mission and its only source of legitimacy.
“Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney’s efforts to reach him. While such a rule might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation, overriding practical considerations counsel against its adoption. As we have stressed on numerous occasions, ‘[o]ne of the principal advantages’ of Miranda is the ease and clarity of its application. Berkemer v. McCarty, 468 U.S. 420, 430, 104 S.Ct. 3138, 3145, 82 L.Ed.2d 317 (1984); see also New York v. Quarles, supra, 467 U.S., at 660, 104 S.Ct., at 2634 (concurring opinion); Fare v. Michael C., 442 U.S., [707] at 718, 99 S.Ct., [2560] at 2568. [61 L.Ed.2d 197]..."
The Court also wrote, at — U.S. —, 106 S.Ct. at 1144:
“The position urged by respondent would upset this carefully drawn approach in a manner that is both unnecessary for the protection of the Fifth Amendment privilege and injurious to legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney’s efforts to contact him would contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society's legitimate and substantial interest in securing admissions of guilt....”
The Court further stated at — U.S. —, 106 S.Ct. at 1146:
“Questions of precedent to one side, we find respondent’s understanding of the Sixth Amendment both practically and theoretically unsound. As a practical matter, it makes little sense to say that the Sixth Amendment right to counsel attaches at different times depending on the fortuity of whether the suspect or his family happens to have retained counsel prior to interrogation. Cf. [Y. Kamisar, Police Interrogation and Confessions (1980)], at 220-221. More importantly, the suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment’s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any ‘criminal prosecu-tio[n],’ U.S. Const., Amdt. 6, the accused shall not be left to his own devices in facing the ‘ “prosecutorial forces of organized society,” ’ Maine v. Moulton, — U.S., at —, 106 S.Ct., [477] at 484 [88 L.Ed.2d 481] (quoting Kirby v. Illinois, 406 U.S., [682] at 689, 92 S.Ct., [1877] at 1882 [32 L.Ed.2d 411]....
“ ... The clear implication of the holding, and one that confirms the teaching of [United States v. ] Gouveia, [467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)], is that the Sixth Amendment right to counsel does not attach until after the initiation of formal charges.”
Applying Moran v. Burbine to the circumstances of the present case, we hold that neither petitioner’s Fifth nor Sixth Amendment rights were violated by the failure of the interrogating authorities (who had given petitioner the Miranda warnings) to inform her of the presence of an attorney who had been sent at the request of a third party. Nor do we find this conduct by law enforcement officials violative of the constitution of this state.
II.
Whether petitioner’s confession was voluntary.
The opinion of the Court of Criminal Appeals accurately summarized the facts on which that court concluded that the Miranda warning was given to petitioner, and that she voluntarily waived her rights. The record fully supports that conclusion. We quote, from the suppression hearing, the testimony of special agent Burns, who was the first officer to interrogate petitioner:
“Q. Did you talk to Mrs. Neelley?
“A. Yes, I did.
“Q. On October 14, 1982?
“A. Yes, sir.
“Q. Without asking you what she said, did you talk to her about the murder of Lisa Ann Millican on that occasion?
“A. Yes, sir; I did.
“Q. Before you asked her anything about that or any other things, I’ll ask you if you gave her what’s known as the Miranda warning or advised her of her constitutional rights regarding the making of a statement.
“A. Yes, I did.
“Q. What did you do about that? How did you go about it?
“A. I read to her from our standard form, FD-395, which is entitled ‘Interrogation Advice of Rights — Your Rights.’
“Q. Is that a document?
“A. Yes; it is.
“Q. What did you do with the document?
“A. I read it aloud to her.
“Q. I’ll ask you to read to the Court what you read to Mrs. Neelley at that time. When was it, please?
“A. It was read at 6:50 p.m., Georgia time, on 10-14-82 in Murfreesboro, Tennessee. The document is entitled ‘Interrogation Advice of Rights — Your Rights.’ It begins: ‘Before we ask you any questions you must understand your rights. You have the right to remain silent. Anything you say can be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have a right to stop answering at any time. You will also have a right to stop answering at any time before you talk to a lawyer.’ Then it has a paragraph entitled, ‘Waiver of Rights. I have read this statement of my rights, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.’
“Q. You read that to Mrs. Neelley?
“A. Yes; I did.
“Q. And you stated you read this to her. Did you allow her to read it?
“A. Yes. After I finished reading the form, I gave it to her and told her to read it.
“Q. Did you know if she read it or not?
“A. She looked at the form, read part of it aloud. After she had finished reading it, I asked her if she was willing to sign the waiver section of the form.
“Q. What did she say?
“A. She said that she thoroughly understood what the form said but that she did not want to sign the form. She also said that she was willing to talk at that time without an attorney present.
“Q. You told her that she could have an attorney if she desired.
“A. That’s correct.
“Q. She did not, in fact, sign the form?
“A. That is right. She did not sign it.
“Q. Did she then make a statement to you, Agent Burns, about the murder of Lisa Ann Millican and other things also?
“A. Yes; she did.
“Q. Was the statement that she made to you made freely and voluntarily?
“A. Definitely.
“Q. Was it make of her own free will and accord?
“A. Yes; it was.
“Q. Did you or anyone else in your or her presence make any promises or threats or offers of reward to induce her to make a statement?
“A. Absolutely not.
“Q. Did she, the defendant, Mrs. Neelley, at any time throughout that entire interview indicate to you that she did not want to talk any more to you and that she did, in fact, want an attorney?
“A. Absolutely not; to the contrary.
“Q. I want to go on now, and you recall Mr. French underlining or highlighting some things for you to read or recall about a statement that she had made concerning her attorney, Mr. Burton.
“A. Yes; I do.
“Q. I want you to go further and relate to us the next paragraph, please sir.
“A. The next paragraph begins, ‘She did state that she was willing to talk about any other matter. She was told at that time that if she wanted to terminate the interview that she could and that she could return to her cell without any further questioning. She insisted that she did not want to leave the interview and wanted to continue talking at that time.’
“Q. All right, now, we have used the term ‘issue’ and we have used the term ‘matter.’ What were we talking about? What was the issue or matter under discussion between you and Mrs. Neelley at that time?
“A. We were asking her about passing raised money orders and passing them throughout the states of Alabama and Georgia, and that’s the only thing we were talking about at that time.
“Q. And she told you she did not want to talk about traveling through those states to pass money orders or checks?
“A. That’s correct.
“Q. And she told you without her attorney present and told you that Mr. Burton was her attorney?
“A. That’s correct.
“Q. What was Mr. Burton her attorney concerning?
“A. It’s my understanding that he was her attorney regarding the charges in Murfreesboro which were for other checks and money orders.
“Q. You were not interrogating her about those; is that correct?
“A. That is correct.
“Q. At the time you interviewed her there that night, Mr. Burns, Agent Burns, did she have an attorney with regard to the Lisa Ann Millican murder? Had one been appointed or had she retained one at that time?
“A. No.
“Q. As far as you knew at that time she was not even represented on that; is that correct?
“A. That is correct. She had not been represented regarding that matter.
“Q. When she told you — when you read her the Miranda warning and talked to her about it otherwise she told you she did not want an attorney and she was willing to talk with you?
“A. That’s correct.
“Q. At any other time during that interview or that procedure that night did you ask her if she wanted to stop the interview?
“A. Yes; I did.
“Q. Tell us about that time or times, please sir.
“A. There were numerous occasions. At 7:29 p.m. — let me correct that. At 7:25 p.m. when she told me she did not want to talk about those money orders without her attorney present—
“Q. Excuse me. Did you talk to her any more about money orders even in the state of Alabama and Georgia then after she told you that.
“A. Not until much later in the interview when she volunteered information herself.
“Q. All right, I’ll ask you about that in a moment. Go ahead. At what other times did you indicate she could stop the interview?
“A. At 7:25 she was then told that she could stop and she could return to her cell. At 7:29—
“Q. What did she tell you at 7:25 when you told her that?
“A. Well, I was telling her that beginning at 7:25.
“Q. All right.
“A. At 7:29 she said that she wanted to continue the interview and that she did not want to leave and that she did want to talk about all other matters. Then at 7:49 she was told that the interview could be stopped and again she could return to her cell, and she said that she did not want to return to her cell and that she wanted to continue discussing other matters.
“THE COURT: What time was that?
“A. That was 7:49, Your Honor. At 8:32 p.m. — and all of these are Georgia times — she was again told that she could return to her cell and that the interview could be terminated, and she said she did not want to. Then at 9:10 p.m., when Investigator Smith came in to the interview room, she was again told that she could leave, she could return to her cell, the interview could terminate, and at that time she told me that she was sick of hearing that; she didn’t want to return to her cell and she wanted to keep on talking.”
Petitioner’s version of the interview did not materially differ from that of Agent Burns:
“Q. All right, you recall that the — you said you recall that they read your rights to you; is that right?
“A. Yes, sir.
“Q. And you recall this being read to you: T have read this statement of my rights, and I understand what my rights are.’
“A. Yes, sir.
“Q. ‘I am willing to make a statement and answer questions.’
“A. To a certain extent 1 told them I would answer questions about my background.
“Q. You remember that being read to you?
“A. Yes, sir.
“Q. And you got a chance to read it yourself, didn’t you?
“A. Yes, sir.
“Q. Do you remember hearing read to you or reading yourself: T do not want a lawyer’?
“A. When he read that; yes.
“Q. And you read it yourself?
“A. Yes.
“Q. And you remember this — being read to you or you reading it: T understand and know what I am doing.’
“A. Yes, sir.
“Q. And at that time you told them that you wanted to talk to them and did not want an attorney present, didn’t you?
“A. Yes, sir.
“Q. Later in the interview something was said about some money orders, wasn’t it?
“A. Well, it — they said the reason they were there was to discuss money orders from Alabama and Georgia.
“Q. Did they tell you, Mrs. Neelley, that that was the only reason they were there?
“A. They mentioned nothing about anything in Fort Payne or anything about murder until a couple of hours later.
“Q. Did they tell you that that was the only reason they were there, to talk about money orders?
“A. I asked them if that was the only reason. They avoided the issue. They didn’t really answer. They just changed the subject. They didn’t say—
“Q. Who is they?
“A. Bill Bums and Lester Stuck. Lester Stuck didn’t say very much. Bill Bums did most of the talking.
“Q. At what point in the interview did you tell them that you wanted to talk to your lawyer? Did you say you wanted to talk to a lawyer or see a lawyer? How did you tell them that?
“A. I said, T want to speak to my lawyer.’
“Q. When did you tell them that?
“A. Well, when they first arrived, I told them I would like to speak to my lawyer before I answered any questions. They said it was just a few routine questions about my background.
“Q. They said. Who said that?
“A. Bill Burns did.
“Q. All right. He said what?
“A. That it was just a few routine questions about my background, and if it was all right, he would like to ask me those questions.
“Q. And you told him you wanted to talk to a lawyer?
“A. I had told him before he said that, and I said since all he wanted was some background information I would answer that without a lawyer present.
“Q. I’ll ask you if it’s not a fact that the only time you mentioned anything about not wanting to talk about anything was later in the interview they asked you about some money orders and you told them that Bill Burton was your attorney and you did not want to discuss that issue without Mr. Burton.
“A. That’s not correct.
“Q. That’s not correct?
“A. No; it is not.
“Q. I’ll ask you if you didn’t, in fact, tell them even later in the interview that you did, in fact, want to talk about the money orders.
“A. I don’t recall saying that.
“Q. That in substance.
“A. That’s not what I’m saying. They asked me about the money orders when they first got there, and I told them I didn’t want to discuss it. I told Bill Bums I did not want to discuss it, and he asked me if it was all right if he could ask me a few other questions about my background. We talked for over an hour about my background, where I was from and such things as that. Then he started to get into the money orders, and I told him I didn’t want to talk about that. Not in — I don’t know exactly what words I used, but I said I wasn’t going to say anything about it without my lawyer present.
“Q. My question to you was even later than that in the interview is it not a fact that you told Mr. Bums that you did want to talk about the money orders.
“A. I’m not sure if I said that. Later—
“Q. That’s my question to you. Did you say that or not?
“A. I do not know.
“Q. You’re saying you don’t know that?
“A. I don’t know if I said that or not.
“Q. What did you say about that?
“A. Well, after we got off the subject of the money orders they started talking about — they were, asking me about what I did at certain times, where I was at. I thought it was pertaining to the money orders, and I didn’t give any details or anything, and later they got into asking me if I knew people concerning this case—
“Q. I’m talking to you now about the money orders.
“A. —this case in Port Payne. I understand that. I’m trying to explain it. The subject was dropped about the money orders later in the evening, and then later, once again, it was picked back up and—
“Q. How was it picked back up?
“A. I don’t remember exactly. It was just mentioned again.
“Q. Isn’t it a fact you’re the one that picked it back up?
“A. I don’t believe so. I would not voluntarily say that I wanted to talk about the money orders, because I was not wanting to say anything about the money orders without my attorney.
“Q. Do you recall at about 7:25 being told you could stop talking if you wanted to and go back to your cell?
“A. Yes, sir.
“Q. What did you tell them?
“A. I told them that before I went back I’d like to find out a few more details about what they were wanting to know.
“Q. You had really turned it into an interview of them. Is that what you’re telling us?
“A. Not really. I was not interviewing them. I was being interviewed. I just wanted to find out exactly what they were there for. They were mostly beating around the bush. They wouldn’t exactly—
“Q. You were trying to find out what they knew?
“A. Not exactly.
“Q. What do you mean not exactly?
“A. I would not say that.
“Q. What would you say?
“A. I was trying to find out what they were trying to get me to say. Excuse me. I did not mean it like that.
“Q. Did you tell them when they told you at 7:25 that you could stop talking — did you tell them that you wanted to stop talking?
“A. No; I did not.
“Q. What about at 7:49? You recall that, [they] once again told you that they would stop talking to you; you could go back to your cell if you wanted to?
“A. I don’t recall the times, but several times during the night they told me I could go back to my cell if I wished to, and I told them I wanted to talk to my husband. I knew he was being interviewed, and they said they were trying to arrange that, if they could, and I said I wanted to find out what else they wanted me for. I mean in substance what else they were talking about.
“Q. You were still trying to find out things from them.
“A. You could say that.
“Q. You recall the last time they asked you if you wanted to stop talking to them? Do you recall telling them you were sick of hearing that or tired of hearing that and you wanted to go on talking?
‘‘A. I did not say that. I said I wish that he would stop saying that. I didn’t say it as he said I did.
“Q. You told him that you wished he would stop asking you if you wanted to stop talking.
“A. Yes, sir.
“Q. And you did want to continue talking.
“A. Yes, but I was not volunteering information, as he said I was.” (Emphasis added.)
The facts concerning the giving of the Miranda warning to Mrs. Neelley by Agent Burns were also clearly established, both in the State’s case-in-chief and upon Burns’s cross-examination. These facts, together with those facts referred to in the opinion of the Court of Criminal Appeals, provide a sound basis for finding that petitioner understood her Miranda rights, including the right to counsel, yet knowingly and intelligently waived them. See Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982), and cases cited therein. Moreover, the preponderance of the evidence adduced supports the trial court’s finding that the confession was voluntarily made. Simpson v. State, 401 So.2d 263 (Ala.Crim.App.), cert. denied, 401 So.2d 265 (Ala.1981).
III.
Although at trial petitioner proffered no evidence on the issue, she nevertheless argues that the exclusion of jurors because of their views on capital punishment denied her the right to an impartial jury drawn from a cross-section of the community.
The precise question was decided on May 5, 1986, by the United States Supreme Court in Lockhart v. McCree, — U.S. -, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). That Court, after lengthy consideration, concluded at, — U.S. -, 106 S.Ct. 1766:
“In sum, ‘Witherspoon-excludables,’ or for that matter any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair cross-section requirement. See Lockett v. Ohio, 438 U.S. 586, 597 [98 S.Ct. 2954, 2960-61, 57 L.Ed.2d 973] (1978).... It is for this reason that we conclude that ‘Witherspoon-excludables’ do not constitute a ‘distinctive group’ for fair cross-section purposes, and hold that ‘death qualification’ does not violate the fair cross-section requirement.”
We pretermit discussion of the other issues raised before this Court by petitioner. Those issues were considered by the Court of Criminal Appeals, and we find them to have been correctly decided.
Let the judgment be affirmed.
AFFIRMED.
All the Justices concur.
Judith Ann NEELLEY v. STATE.
CR-91-1036.
Court of Criminal Appeals of Alabama.
June 18, 1993.
As Modified on Denial of Rehearing Aug. 13, 1993.
F. Timothy McAbee and Barry A. Ragsdale, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Melissa Math, Asst. Atty. Gen., for appellee.
[OPINION BY McMILLAN, Judge. type=majority]
McMILLAN, Judge.
The appellant was convicted of the murder, made capital because it was committed during a kidnapping, of 13-year-old Lisa Ann Millican. The trial court sentenced the appellant to death, overriding the jury’s recommendation of life imprisonment without parole. On direct appeal, the appellant’s conviction and sentence of death were affirmed by this court and this court’s judgment was affirmed by the Alabama Supreme Court. The United States Supreme Court denied the appellant’s petition for a writ of certiorari. Neelley v. State, 494 So.2d 669 (Ala.Cr.App.1985), affirmed, 494 So.2d 697 (Ala.1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1389, 94 L.Ed.2d 702 (1987). The appellant filed her first post-conviction petition, pursuant to Rule 20, A.R.Cr.P.Temp., on May 18, 1987. An evidentiary hearing on the petition was conducted, following which the trial court denied the petition. This denial was affirmed by this court, without opinion and the Alabama Supreme Court denied certiorari review, as did the United States Supreme Court. The present petition was filed on October 12, 1989, pursuant to Rule 20, A.R.Cr.P.Temp., and the appellant amended that petition on November 27, 1989. The State responded on December 8, 1989, and, on February 22, 1990, the trial court dismissed a majority of the claims and ordered an evidentiary hearing on the claims alleging that counsel was ineffective and that the appellant had not been competent to stand trial. This hearing was held in January 1991 and on August 8, 1991, the appellant filed a motion to again amend the petition, which motion the trial court denied on February 27, 1992. On that same date, the trial court filed an order denying the appellant relief of all claims asserted in the petition as originally amended.
I
The appellant argues that the issues that she raised and that were dismissed by the trial court on procedural grounds, should have been discussed on the merits, pursuant to Rule 45A, A.R.App.P. However, it is well settled that the plain error rule applies only on direct appeal and not in collateral review proceedings. Ex parte Clisby, 501 So.2d 483, 484 (Ala.1986); Thompson v. State, 581 So.2d 1216, 1218-19 (Ala.Cr.App.1991), cert. denied, — U.S., 112 S.Ct. 868, 116 L.Ed.2d 774 (1992); Duren v. State, 590 So.2d 360, 368-69 (Ala.Cr.App.1990), affirmed, 590 So.2d 369 (Ala.1991), cert. denied, — U.S. -, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992); Wright v. State, 593 So.2d 111, 119 (Ala.Cr.App.1991), cert. denied, — U.S. -, 113 S.Ct. 132, 121 L.Ed.2d 86 (1992); Bell v. State, 593 So.2d 123, 126 (Ala.Cr.App.1991), cert. denied, — U.S. -, 112 S.Ct. 2981, 119 L.Ed.2d 599 (1992). Therefore, we find no error in the trial court’s refusal to review these claims.
II
The appellant argues that the trial court abused its discretion in denying her second motion to amend her petition. In that amendment to her petition, the appellant alleged racial discrimination in the selection of jurors, an improper jury instruction on reasonable doubt, and the unconstitutionality of the Alabama statute concerning compensation of attorneys in capital cases, § 15-12-21, Code of Alabama. These latter two issues are addressed by the appellant on this appeal. The trial court denied the appellant’s motion to amend on the grounds that the amendment “comes after the evidentiary hearing was completed in the case and is not based upon surprise, newly discovered evidence or changed circumstances.”
“Rule 20.7(b) of the Alabama Temporary Rules of Criminal Procedure [now Rule 32.7(b), Alabama Rules of Criminal Procedure] reads as follows: ‘Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.’ (Emphasis added [in Cochran ].) The clear import of the language used in Rule 20.7(b) [Rule 32.7(b) ] is that a petitioner does not have an absolute right to amend his petition prior to the entry of judgment.
“ ‘Amendments are to be freely allowed when justice requires.’ Ex parte Tidmore, 418 So.2d 866, 868 (Ala.1982). ‘[A]mend-ments should be freely allowed and ... trial judges must be given discretion to allow or refuse amendments.... The trial judge should allow a proposed amendment if it is necessary for a full determination on the merits and if it does not unduly prejudice the opposing party or unduly delay the trial.’ Record Data International, Inc. v. Nichols, 381 So.2d 1, 5 (Ala.1979) (citations omitted). ‘The grant or denial of leave to amend is a matter within the sound discretion of the trial judge and is subject to reversal on appeal only for an abuse of that discretion. Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977). The trial court acts within its discretion so long as its disallowance of an amendment of pleadings is based upon some valid ground, such as an actual prejudice or undue delay. Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).’ Ex parte Reynolds, 436 So.2d 873, 874 (Ala.1983). Although the eases cited in this paragraph deal with the interpretation of Rule 15, AR.C.P. [Temp.], the principles expressed have equal application here.”
Cochran v. State, 548 So.2d 1062, 1075 (Ala.Cr.App.1989). In Cochran, defendant attempted to amend his petition eight months after it had originally been filed, after the evidentiary hearing had begun, after the circuit court had ruled on a related ground asserted in his petition, and after having previously filed a motion to amend. This court held:
“Cochran cannot claim that his proposed amendment was based on surprise, newly discovered evidence, or changed circumstances. ‘Courts may properly refuse permission to amend ... where there is no showing of diligence or that the facts were unknown to the applicant prior to his application.’ 61 Am.Jur.2d, § 312 at 301 (1981). See also Robinson v. Kierce, 513 So.2d 1005, 1006-07 (Ala.1987); National Distillers and Chemical Corp. v. American Laubscher Corp., 338 So.2d 1269, 1273-75 (Ala.1976).”
Id. See also Whitehead v. State, 593 So.2d 126 (Ala.Cr.App.1991). In this ease, where the appellant failed to file the motion for leave to amend until seven months after the evidentiary hearing had been held and because the claims asserted in that amendment were not based on surprise, newly discovered evidence, or changed circumstance, we find no abuse of discretion by the trial court. The appellant attempts to raise' in her brief to this court the same claims that were included in the second amendment; these claims are procedurally barred. Rules 20.-2(a)(3), 20.2(a)(5), 20.2(b), AR.Cr.P.Temp.
Ill
The appellant argues that one of the attorneys who represented her at trial and on appeal engaged in unprofessional, unethical, and immoral conduct, which she says, indicated a complete lack of judgment .and rationality, and resulted in ineffective assistance of counsel. The appellant cites the attorney’s unconventional beliefs, questionable emotional stability, and offering her illegal drugs on several occasions.
In his order, the trial judge addressed this claim as follows:
“In support of this allegation petitioner cites counsel’s testimony that he is a mystic, that he is clairvoyant and a prophet, that he hears voices and responds to them, and that he possesses the paranormal power to ‘sparkle’ and to send ‘blue beams of energy.’
“It is not unfair to characterize trial counsel’s behavior cited above as eccentric and unorthodox. There has been no showing and there is no evidence, however, that this behavior interfered with or adversely affected counsel’s representation of petitioner, and without a nexus between such beliefs and practices to his trial preparation or performance, they provide no basis for finding that his performance was deficient or his assistance ineffective.
“Petitioner also alleges that counsel provided her with illegal drugs on several occasions. The only evidence to support this allegation is testimony of the petitioner. Counsel denies the allegation and testified that he was strip-searched every time that he went to visit petitioner at the penitentiary. The court finds that counsel did not provide petitioner with drugs.”
The attorney testified that he did have spiritual views that may seem unusual, but that he did not believe that his views hindered, or in any way affected, his representation of the appellant. He testified that he took no action and based no decisions at trial on his belief in paranormal experiences. Moreover, the appellant has presented no evidence to support her allegation that her attorney’s performance was affected in any way by his beliefs.
As to the appellant’s allegation that her attorney provided her with illegal drugs, he denied this allegation and testified that he was searched by prison officials prior to each visit with the appellant.
“The trial court, when deciding this issue, faced a credibility question_ 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.”
Hallford v. State, 629 So.2d 6 (Ala.Cr.App. 1992). See also Spinks v. State, 564 So.2d 1043, 1046 (Ala.Cr.App.1990); State v. Terry, 601 So.2d 161 (Ala.Cr.App.1992).
“In giving meaning to the [constitutional requirement of effective assistance of counsel] ... we must take its purpose — to ensure a fair trial — as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.”
Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Based on the record in this case, the trial court properly found that the performance of the appellant’s attorney was not deficient. Because we conclude that the attorney’s performance was not deficient, we need not address the Strickland component, i.e., whether the attorney’s defective performance prejudiced the defense. Cf. State v. Roland, 808 S.W.2d 855 (Mo.App.1991) (court found attorney who allegedly took drugs while representing the defendant and acted erratically during trial did not render ineffective assistance.)
IV
The appellant argues that she received ineffective assistance of counsel, because her attorney sexually abused and sexually harassed her, and, she says, this alleged abuse and harassment inhibited her from fully cooperating and communicating with him.
During the hearing held on this petition, the appellant presented the testimony of an expert in domestic and interpersonal violence. The expert testified that she had met with the appellant and that she was basing her opinion on information supplied to her solely by the appellant. She stated that the appellant had told her that her attorney had made lewd and sexual remarks at every meeting they had had prior to trial. The appellant further told her that he had kissed, hugged, and “nibbled” her. The expert further testified that she had seen letters that the attorney had written to the appellant containing sexual comments, innuendo, and drawings, but she acknowledged that none of these letters were written until after trial. The expert testified that the appellant told her that this activity made her distrust her attorney. It was her opinion that these actions constituted sexual harassment, and that they thereby promoted the appellant’s dependency on her attorney, and diminished her ability to cooperate with him in her defense. On cross-examination, the expert acknowledged that the appellant had also made sexual references and statements in her correspondence with her attorney.
During the hearing, the attorney testified that, other than questions of a sexual nature pertaining to the facts of the case and to the past sexual abuse of the appellant by her husband, he had made no sexual remarks to the appellant until after the trial. He testified that he began to write the appellant letters containing sexual innuendo to “keep her spirits up,” but that they were merely “jailhouse” games with “jailhouse talk.” Her attorney testified that he considered the letters and sexual references to be jokes, and believed that the appellant had also construed them as such. He said that the appellant had never indicated that she found any statements or letters offensive or inappropriate, and that, if she had so indicated, he would have immediately stopped.
In its order, the trial court found as follows concerning the appellant’s claim that her attorney’s sexual harassment prevented her from receiving effective assistance of counsel:
“The evidence establishes and the court finds that trial counsel permitted a relationship to develop between himself and petitioner which exceeded that of an appropriate attorney-client relationship. The relationship was such that sexual innuendos and sexually explicit remarks became common incidents of communication between them. This conduct demonstrated a serious departure from the professionalism expected of attorneys.
“Petitioner has not shown, however, that such behavior prejudiced the conduct of her trial. The only evidence touching this issue is that of Dr. Lenore Walker [the expert witness] who expressed the belief that the relationship ‘fostered dependency’ by petitioner upon counsel and inhibited her from fully cooperating and communicating with counsel.
“The impact, if any, of the relationship on the trial is, at best, speculative and the court finds that petitioner has failed to carry the burden of showing that counsel’s sexual expressions resulted in actual prejudice to her defense.”
While her attorney’s actions may have constituted sexual harassment, as alleged, and may constitute a sound basis for other causes of action, see, e.g., McDaniel v. Gile, 230 Cal.App.3d 363, 281 Cal.Rptr. 242 (Cal.App. 2 Dist.1991) (attorney’s sexual harassment of client formed the basis for a suit alleging legal malpractice and the intentional infliction of emotional distress); and Otis’s Case, 135 N.H. 612, 609 A.2d 1199 (1992) (attorney’s sexual harassment of client warranted disbarment), the record does not indicate that these actions and statements by the appellant’s attorney resulted in his providing ineffective assistance of counsel under Strickland v. Washington, supra.
“The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674 (1984). The appellant has clearly failed to establish the prejudice prong of the two-pronged test established in Strickland v. Washington, supra.
“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
“In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.... The assessment of prejudice should proceed on the assumption that the decision-maker is reasonably, conscientiously, and impartially applying the standards that govern the decision....
“... When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When the defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sen-tencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
“In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”
Strickland v. Washington, 466 U.S. at 694-95, 104 S.Ct. at 2068-69.
The appellant has failed to argue how this admittedly inappropriate behavior by her attorney specifically affected his performance or the outcome of her trial, and there has been no showing that, but for this conduct by him, the result of her trial would have been different.. Moreover, during the hearing on the Rule 20 petition, the appellant testified that during the course of her trial and until shortly thereafter she was in love with her attorney.
Y
The appellant argues that she was denied effective assistance of counsel because one of her attorneys at trial and on appeal labored under a conflict of interest that adversely affected his performance. The appellant refers to a publicity contract between her and the attorney, which, she alleges, motivated his desire to sensationalize the trial. Specifically, the appellant argues that this conflict of interest adversely affected her attorney’s performance in the following ways: He failed to move for a change of venue; he failed to consult with her about the possibility of a negotiated plea for life imprisonment without parole; he faffed to conduct an adequate pretrial investigation of the “battered woman syndrome” as a viable defense; he failed to adequately examine veniremembers or to seek individual voir dire of “particular jurors”; he introduced certain evidence and testimony for the sole purpose of sensationalizing the trial; he failed to object to certain evidence, specifically photographs of the victim, her statement, and the testimony of her case worker and other victims; he elicited too much testimony from her during trial; he failed to present any witnesses, other than the appellant, during the sentencing phase of the trial; he made inflammatory and sensational statements to the press; and he refused to “relinquish control” of her case.
The record indicates that the publicity contract referred to by the appellant was not executed until June 24, 1983, three months after the trial and after the filing of the motion for new trial. Under the contract, her attorney would receive one-half of any profits from any publicity, and the appellant “or her nominees” would receive one-half of the “net profits” from any “commercialization” of the offense or the trial. The contract does contain the provision that “ ‘[n]et profits’ is a term to be defined by [her attorney] as he deems necessary.” There was also a provision that, should the appellant die before any profits are realized, her children would be entitled to her portion. Her attorney testified that the contract was intended to provide financial support for the appellant’s children and to protect the appellant from continued media harassment. Her attorney admitted that years after the appellant’s trial, he negotiated with various media representatives, but that no agreement was ever reached. He further testified that until 1989 he was unaware that a contract giving a lawyer literacy on media rights violates the Alabama Rules of Professional Conduct, governing the ethical conduct of lawyers. See Rule 1.8(d), Alabama Rules of Professional Conduct; such conduct was prohibited by DR 5-104(b), Alabama Code of Professional Responsibility.
The trial court found that the publicity contract created an actual conflict of interest; however, it found that the conflict of interest did not adversely affect the attorney’s performance. The trial court based its determination that an actual conflict of interest arose on DR 5-104(b), Alabama Code of Professional Responsibility (now Rule 1.8(d), Alabama Rules of Professional Conduct), and certain case law, specifically United States v. Hearst, 638 F.2d 1190 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); People v. Gacy, 125 I11.2d 117, 125 Ill.Dee. 770, 530 N.E.2d 1340 (1988), cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 671 (1989); People v. Corona, 80 Cal.App.3d 684, 145 Cal.Rptr. 894 (1978).
“In most ineffective assistance cases, the defendant has the burden of affirmatively proving prejudice. Where, however, an alleged conflict of interest predicates the ineffectiveness claim the defendant bears a lighter burden. That is, where a defendant puts a trial judge on notice of the alleged conflict before or during trial and the trial court fails to inquire into the conflict, a reviewing court will presume prejudice upon a showing of possible prejudice; Holloway v. Arkansas, 435 U.S. 475, 484-91, 98 S.Ct. 1173, 1178-82, 55 L.Ed.2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980); on the other hand, if the defendant fails to put the trial court on notice of the alleged conflict, a reviewing court will presume prejudice upon a showing that the potential conflict developed into an actual conflict which adversely affected the defense lawyer’s performance. Id. at 348-50, 100 S.Ct. at 1718.”
United States v. Marrera, 768 F.2d 201, 205-06 (7th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986). In this c&se, the appellant failed to place the trial court on notice of this alleged conflict of interest at any time during the trial or while her appeal was pending.
“In a conflict of interest situation, the court will presume prejudice to the defendant if he shows that he received inadequate representation because counsel actively represented conflicting interests. Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980); Porter v. Wainwright, 805 F.2d 930, 939 (11th Cir.1986); cert. denied, [482] U.S. [918], [919], 107 S.Ct. 3195, 3196, 96 L.Ed.2d 682 [683] (1987). A potential conflict is not sufficient to impugn a criminal conviction, Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, but the standard developed in Cuyler has been applied to cases in which defendants argue that their lawyers were more interested in publicity than in obtaining an acquittal. See United States v. Hearst, 638 F.2d 1190 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).”
Zamora v. Dugger, 834 F.2d 956, 960-61 (11th Cir.1987). The Eleventh Circuit Court of Appeals, in Zamora v. Dugger, noted that although a potential conflict of interest is insufficient to impugn a criminal conviction in certain cases defendants have argued that, because their attorneys were more interested in generating publicity than in representing their clients effectively, they should be acquitted or awarded a new trial. The court cited United States v. Hearst, which the trial court in this case also cited. However, in Zamora v. Dugger, the court distinguished the facts of United States v. Hearst from those of Zamora, stating:
“In Hearst, F. Lee Bailey was held to have a conflict of interest because he had contracted with a publisher during the course of the proceedings to write a book about his client, Patty Hearst, and her ease. 638 F.2d at 1192. Like Bailey, Ellis Rubin [the attorney in Zamora v. Dugger ], contracted to write a book about his client’s trial. However, Rubin did not negotiate for the book contract during the course of the proceedings. Rubin conducted negotiations one year after trial.
“In addition, Zamora did not testify at trial, unlike Patty Hearst. Thus, Rubin is not susceptible to the allegation raised against Bailey that he had his client testify so that he could write about it in his book. Consequently, the book contract in this ease did not constitute a conflict at the time of trial.”
Zamora v. Dugger, 834 F.2d at 961 f.n. 4. Similarly, in this case, the appellant’s attorney did not execute the publicity contract during the course of the trial, but rather after the appellant’s trial, and did not engage in negotiations with media representatives until years after the trial. While the appellant did testify at trial, the record is clear that she chose to do so, and she has not claimed that her testifying was orchestrated by her attorney to sensationalize the case. Indeed, her attorney’s publicity rights would have been more valuable had she been acquitted. As the Court noted in Zamora, “even if it had been established that [the attorney] was interested in publicity, his reputation would have been ‘more enhanced by a successful defense of so serious a case rather than by its loss.’ ” Zamora v. Dugger, 834 F.2d at 961. See also United States v. Hearst, 638 F.2d at 1193 (“[t]his alleged conflict was not total, for surely the salability of Bailey’s book would have been enhanced had he gained an acquittal for Hearst”).
In United States v. Marrera, supra, the court found that an attorney’s fee arrangement with his client, awarding the attorney any proceeds from the sale of movie rights to the defendant’s participation in the offense and subsequent events created a potential conflict of interest that never developed into an actual conflict. In so ruling, the court emphasized that the defendant was aware of his lawyer’s financial interest in the movie rights and that, by willingly taking a trip to Hollywood to sell his story, the defendant was jeopardizing his own defense. Thus, the court concluded that the defendant shared the blame with his lawyer. The court emphasized the ethical obligations of defense counsel, as follows:
“In Cuyler the Supreme Court noted that ‘[d]efense counsel had an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of the trial.... [T]rial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel.’ 446 U.S. at 346-47, 100 S.Ct. at 1716 (footnote omitted). The Cuyler court went on to explain that the defense counsel ‘ “ ⅛ in the best position professionally and ethically to determine when conflict of interest exists or will probably develop in the course of a trial.’ ” ’ Id. at 347, 100 S.Ct. at 1717 (quoting Holloway v. Arkansas, 435 U.S. at 485, 98 S.Ct. at 1179 and State v. Davis, 110 Ariz. 29, 31, 514 P.2d 1025 (1973)); see also United States ex rel. Ballard v. Bengston, 702 F.2d 656, 662 n. 6 (7th Cir.1983) (defense attorneys have the primary responsibility for the ascertainment and avoidance of conflicts of interest); United States v. Medina-Herrera, 606 F.2d 770, 776 (7th Cir.1979) (the same effect) cert. denied, 446 U.S. 964, 100 S.Ct. 2939, 64 L.Ed.2d 822 (1980).”
768 F.2d at 206. However, in describing defense counsel’s ethical obligations and acknowledging that the attorney in that case had apparently breached this ethical obligation, the court noted that a defendant’s criminal appeal was “not a proceeding to discipline counsel,” and stated that “[e]ven if it were, we would not discipline counsel by freeing his client.” Id. at 208.
The court distinguished the facts of Marrera from those of United States v. Hearst, stating “In Hearst, the defendant, Patty Hearst, did not, unlike Marrera, share any financial interest with her attorney in the hoped-for proceeds from the sale of the story behind the crime.” Id. at 207 f.n. 7. Like the defendant in Marrero, the appellant in this case, was to share in any profits with her attorney.
In United States v. Hearst, the court remanded the case for the lower court to apply “the law recently laid down by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).” 638 F.2d at 1193. The court further noted that a hearing was necessary because certain of Hearst’s allegations were based on evidence not appearing on the record. Id. at 1195. While the court stated “Bailey’s potential conflict of interest is virtually admitted, and Hearst has alleged an actual conflict and adverse effect in sufficient and not implausible detail,” Id. at 1195, the court held that “Bailey’s book contract created a potential conflict of interest; [and] this case tests whether it ripened into an actual conflict of interest.” Thus the court did not hold that the contract created an actual conflict of interest, but rather remanded the case for that determination to be made by the trial court.
Similarly, defendants in state courts have asked the courts to adopt a rule that a per se conflict of interest exists where there is an agreement between defense counsel and the defendant giving to defense counsel publication or literary rights in the case. In the vast majority of these cases, the courts have refused to do so. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779, 785 (1988) (“[a] petitioner concedes, courts usually hold that there is no per se rule regarding such contracts. Wojtowicz v. United States, 550 F.2d 786 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2938, 53 L.Ed.2d 1071 (1977); Ray v. Rose, 535 F.2d 966 (6th Cir.), cert. denied, 429 U.S. 1026, 97 S.Ct. 648, 50 L.Ed.2d 629 (1976).”) Thus, in Stafford v. State, 669 P.2d 285 (Okl. Cr.1983), vacated, 467 U.S. 1212, 104 S.Ct. 2652, 81 L.Ed.2d 359 (1984), on remand, 697 P.2d 165 (Okl.Cr.1985), the Oklahoma Court of Appeals addressed this issue, stating:
“This issue presents a matter of great ethical and judicial concern. The American Bar Association Code of Professional Responsibility specifically prohibits counsel from acquiring an interest in publication rights concerning the matter for which he is employed prior to conclusion of that matter. It is, however, for the Bar to determine the necessity of any disciplinary action pursuant to DR 5-104(B). Our concern in the matter lies in ensuring the appellant’s sixth amendment right to adequate representation was protected.
“To afford relief to the appellant upon these grounds, it must be established that an actual, not a possible, conflict of interest existed. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Further it must be established that the actual conflict of interest adversely affected the attorney’s performance. Cuyler v. Sullivan, supra.”
Stafford v. State, 669 P.2d 285, 296-97. (Emphasis in original.) The United States Supreme Court vacated the Oklahoma Court of Appeals’ original decision and remanded it for consideration in light of the Strickland v. Washington standard for measuring an attorney’s effectiveness. Thus, using the standard set forth in Strickland, the Oklahoma Court of Appeals analyzed defense counsel’s actions in allegedly contracting to defend his client in exchange for the exclusive publication rights of his client’s life. In Stafford v. State, 697 P.2d 165, 168, the court held:
“The [defendant] contends that this per se caused assistance of counsel to be ineffective and that the burden to prove absence of prejudice shifted to the State. This is not so. Even as Strickland notes, if a conflict of interest exists, prejudice is presumed only when defendant proves his counsel actively represented conflicting interest and that an actual conflict adversely affected his attorney’s performance. Strickland, 466 U.S. at 692-93,104 S.Ct. at 2067, 80 L.Ed.2d at 696, citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Appellant has provided no authority for his assertion that the contract for publication rights per se made counsel’s assistance ineffective. Compare United States v. Hearst, 638 F.2d 1190 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); Ray v. Rose, 535 F.2d 966 (6th Cir.1976), cert. denied, 429 U.S. 1026, 97 S.Ct. 648, 50 L.Ed.2d 629; Fuller v. Israel, 421 F.Supp. 582 (E.D.Ill.1976). Appellant has not offered any evidence which would entitle him to a new trial....
“The Supreme Court urged in Strickland that claims of ineffective assistance of counsel may be disposed of without reaching both components of the inquiry. A court, it reasoned, need not determine whether counsel’s performance was deficient if it determined there was an insufficient showing of prejudice. ‘The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.’ Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 699.
“We do not find that counsel’s conduct was so poor as to have undermined the proper functioning of the adversarial process and to have produced an unreliable result. The Supreme Court noted in Strickland that the testing procedure they set forth would yield different results in only the rarest instances. 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. We find it does not change the result of the present case and that appellant has faded to demonstrate that minus counsel’s contract, a different result would have been reached, especially in light of the utterly overwhelming evidence of his guilt.”
Furthermore, the Oklahoma Court of Appeals distinguished the facts of Stafford v. State, supra, from those of People v. Corona, supra, which the trial court in the present case, relied on. The Oklahoma Court of Appeals did so by noting that the publication contract was available to the court in Corona and “counsel’s actions in that case revealed the contract had definite adverse effects on his legal representation of Corona.” Stafford v. State, supra, 669 P.2d at 297. In further distinguishing, the court stated of the attorney in People v. Corona, supra:
“Counsel actively sought media coverage during the trial, which behavior prompted the trial court to verbally chastise him on at least two occasions (145 Cal.Rptr. at 918). In the appellate court’s words, ‘... defense counsel engaged in continuous conduct to try the case in the press, regardless of the fact that the trial publicity was injurious to the interest of his client.’ 145 Cal.Rptr. at 918).
“Brewer’s [Stafford’s attorney’s] conduct in the present case was clearly not as egregious as the conduct of Corona’s attorney. Throughout the trial Brewer made objections, argued points of law, vigorously cross-examined witnesses and attempted to establish an alibi with witnesses for the defense. Although he agreed to the presence of television cameras in the courtroom during the trial, he did not attempt to try the case to the press.”
Stafford v. State, 669 P.2d at 298.
Similarly, in this case, it is clear from the record that the appellant’s attorney zealously and wholeheartedly represented the interests of the appellant, and earnestly participated in all aspects of the proceeding.
We conclude that the trial court erred in finding that an actual conflict of interest existed in this case, based on the publicity contract. Furthermore, while a potential conflict of interest existed because of the contract, in the present case it never ripened into an actual conflict.
Although the appellant has raised specific allegations of ineffectiveness based on this potential conflict of interest, because we have concluded that the appellant failed to establish an actual conflict of interest, the inquiry stops. Cuyler v. Sullivan, 446 U.S. at 349-50, 100 S.Ct. at 1719.
“[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. See Holloway [v. Arkansas, 435 U.S. 475, 487-91, 98 S.Ct. 1173, 1180-82, 55 L.Ed.2d 42(1978) ]. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. See Glasser [v. United States, 315 U.S. 60, 72-75, 62 S.Ct. 457, 466-67, 86 L.Ed. 680 (1942) ].
“... We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.”
Id. See also Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). In Dumond v. State, the court stated:
“While recognizing the potential for a conflict of interest to develop in such cases and noting the language of Arkansas Rules of Professional Conduct, Rule 1.8(d), we will not presume prejudice. A petitioner who collaterally attacks his conviction under Rule 37 is required to show that he suffered some actual prejudice arising from a specific error by counsel. ‘Prejudice is presumed only if the defendant demonstrates the counsel “actively represented conflicting interest” and that “an actual conflict of interest adversely affected his lawyer’s performance.” ’ Strickland v. Washington, supra, citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). As with any claim of ineffective assistance of counsel, the petitioner has the burden of providing factual support to demonstrate that counsel actively represented conflicting interests and that the conflict of interest adversely affected the counsel’s performance.”
743 S.W.2d at 785. Therefore, we conclude that the defense counsel’s performance was not ineffective because he entered into a publicity contract with the appellant.
VI
The appellant argues that her trial counsel was ineffective for failing to prepare and present a defense based on the “battered woman syndrome.” She argues that her trial attorneys failed to adequately investigate this defense or to retain any expert on this subject, and that, had they done so, the jury might have believed that she had lacked the requisite criminal intent. The appellant also argues that she should receive a new sentencing hearing because her counsel failed to present any evidence concerning the “battered woman syndrome” in mitigation during her sentencing hearing and, had that they done so the trial judge may not have imposed the death sentence.
However, the record indicates that the defense raised and pursued by the appellant’s attorneys was based on the fact that the appellant had been abused by her husband and subjected by him to severe physical and psychological abuse. Although they did not use the term “battered woman syndrome,” they nonetheless argued that, because of the abuse inflicted by her husband, Neelley lacked the criminal intent for the offense.
In its summary of the facts in this case on direct appeal, this court stated:
“In his opening statement, defense counsel informed the jury of Mrs. NeelleyV deprived childhood, of her mother’s and her sister’s promiscuity, and of how, at fifteen years of age, she ran away from home and married Alvin Neelley, a twenty-six-year-old ‘ex-con’ who stole her virginity and later her mind. Defense counsel told a story of how Mrs. Neelley was physically beaten and sexually abused; a story of how she was ‘brainwashed,’ and reduced to a Vegetable’ and an instrument and extension of her husband.
“In his opening statement, defense counsel told the jury that Mrs. Neelley had been trained to do everything she could to try to keep Alvin satisfied and to avoid his beatings. Counsel related facts which involved Mrs. Neelley in robbery, firebombing, forgery, conspiracy to commit murder, and other crimes. Counsel told of how Alvin forced her to procure young girls with ‘small sex organs’ for him.
“... Finally, defense counsel related how Mrs. Neelley, under Alvin’s direction and control, injected [the victim] with [Drano] and [Liquid-PlumrJ, shot her in the back with a pistol, and pushed her body into Little River Canyon.
“... Counsel stated that “when the evidence is in the State will prove its case, and we will prove that Judy Neelley lacked — although we don’t have to prove it — we will prove that Judy Neelley never had the intent to kill anyone.’
“Mrs. Neelley’s defense was a combination of duress, Alabama Code 1975, § 13A-3-30, the battered woman syndrome, Annot., 18 A.L.R. 4th 1153 (1982), and coercive persuasion, Delgado, Ascription of Criminal States of Mind: Toward a Defense Theory for the Coercively Persuaded (‘Brainwashed’) Defendant, 63 Minn. L.Rev. 1 (1978); Dressier, Professor Delgado’s ‘Brainwashing’ Defense: Courting a Determinist Legal System, 63 Minn. L.Rev. 335 (1979); Delgado, A Response to Professor Dressier, 63 Minn.L.Rev. 361 (1979). See also United States v. Hearst, 412 F.Supp. 863 (N.D.Cal.1975); United States v. Hearst, 424 F.Supp. 307 (N.D.Cal. 1976), affirmed, 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); People v. Manson, 61 Cal.App.3d 102, 132 Cal.Rptr. 265 (1976), cert. denied, Manson v. California, 430 U.S. 986, 97 S.Ct. 1686, 52 L.Ed.2d 382 (1977).
“The defense was that Alvin had subjected Mrs. Neelley to such violent and gross mental, emotional, physical, and sexual abuse that she would have done anything, and did do everything he asked. A picture was painted, in the terminology used at trial, of Alvin as ‘Frankenstein’ and Mrs. Neelley as ‘The Bride of Frankenstein.’ The jury was exposed to accounts of ‘putrid, pornographic, degrading, disgusting sex’ as Mrs. Neelley testified how she had been dominated, manipulated, and trained like an animal. She described herself as feeling like ‘a piece of meat’ and it was argued that she had been reduced to a ‘nonhuman.’
“The trial judge was very liberal in allowing the defense to present its case to the point where finally the District Attorney protested that ‘the Court had been almost to the state of disbelief in being lenient.’ Even though Alvin Neelley did not testify, time and time again the defense was permitted to prove what he had said. Only by showing that Mrs. Neelley was an animal, a puppet, acting without intent or thought, could the defense hope to sustain its theory of coercion and duress.”
Neelley v. State, 494 So.2d 669, 676-77 (Ala.Cr.App.1985) affirmed, 494 So.2d 697 (Ala.1986). (Emphasis added.)
The record indicates that her attorney believed that the appellant had mental problems and that he had her evaluated by state mental health workers; however the evaluation submitted by these mental health experts made no reference to the “battered woman syndrome.” Her trial attorneys testified that they consulted with three other mental health experts, and one of the attorneys testified that he spoke to one of those experts on almost a daily basis, but that neither he nor the expert ever mentioned “the battered woman syndrome.” The record indicates that the attorneys researched the psychological concepts of “learned helplessness” and “the Stockholm syndrome” and argued during trial that Mrs. Neelley was a victim of one or both of these syndromes. Her attorney testified that he was contacted after trial by individuals familiar with the “battered woman syndrome” and that was the first time he had heard the term. Cf. Kennedy v. State, 545 So.2d 214, 217-18 (Ala.Cr.App.), cert. denied, 493 U.S. 900, 110 S.Ct. 258, 107 L.Ed.2d 207 (1989) (attorneys’ failure to require DNA fingerprinting did not constitute ineffectiveness, because the process was a recent phenomenon, and trial counsel testified that he had never heard of DNA fingerprinting at the time of the petitioner’s trial). Her attorney testified that once he had been contacted, he located experts and case law on the “battered woman syndrome” and that he argued to the trial court during the hearing on the motion for new trial that Neelley be granted a new trial based on this evidence. He also introduced the testimony of an expert on the subject at the hearing.
In its order, the trial court found no error in the attorneys’ failure to introduce evidence as to the “battered woman syndrome,” during the guilt phase, stating as follows:
“The court finds that counsel’s failure to adequately investigate, prepare and present a defense based on the battered woman syndrome did not prejudice petitioner during the guilt phase of the trial because the only legal theory upon which petitioner’s treatment by her husband was material was mitigation of the sentence. The Alabama Court of Criminal Appeals has analyzed the relevance of abuse suffered by petitioner as follows:
“ ‘There are four conceivable legal issues upon which evidence of the abuse suffered by Mrs. Neelley might have been relevant, namely: (1) duress, (2) insanity, (3) diminished capacity, and (4) mitigation of punishment.
“ ‘The first, duress, is unavailable as a defense to Mrs. Neelley ...
“ “While the second, insanity, has been used as a defense in other cases dealing with battered women ... there was absolutely no evidence — expert or lay— presented by the defense that Mrs. Neelley was legally insane....
“‘The third legal theory, diminished capacity, is not recognized as a defense in Alabama....
“ ‘Finally, the only legal theory upon which Mrs. Neelley’s alleged treatment by her husband was relevant was the one the jury properly considered — mitigation of sentence.
“Neelley v. State, 494 So.2d 669, 681-82 (Ala.Cr.App.1985), aff'd, 494 So.2d 697 (Ala.1986), cert. denied, 480 U.S. 926 [107 S.Ct. 1389, 94 L.Ed.2d 702] (1987).’ ”
The appellant has failed to establish either that the attorneys’ performance fell below a level of competent assistance or that she was prejudiced by her attorneys’ failure to present evidence concerning the “battered woman syndrome.” “While the ability to think creatively can be a great asset to trial lawyers, lawyers rarely, if ever, are required to be innovative, but rather to perform within the wide range of conduct that encompasses the reasonably effective representation mandated by the Constitution.” Pitts v. Cook, 923 F.2d 1568, 1574 (11th Cir.1991).
“Although the Sixth Amendment does impose on counsel an affirmative duty to investigate, this Court is hesitant to announce any mechanical rule that makes that duty absolute. Counsel’s obligation is to conduct a ‘substantial investigation into each of the plausible lines of defense.’ Strickland, 466 U.S. at 681, 104 S.Ct. at 2061.
“A substantial investigation is just what the term implies; it does not demand that counsel discover every shred of evidence but that a reasonable inquiry into all plausible defenses be made.... So long as the error does not impinge upon the ‘proper functioning of the adversarial process,’ it will not pose a constitutional question under the Sixth Amendment. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063.”
Ex parte Womack, 541 So.2d 47, 71 (Ala.1988). Clearly, the appellant’s attorneys raised the defense presented by this syndrome although they did not refer to it as the “battered woman syndrome” defense. Moreover, even when evidence was admitted concerning this syndrome during the hearing on the motion for a new trial and the hearing held on this Rule 20 petition, there was testimony that, in the overwhelming majority of cases dealing with the battered woman syndrome, the abused woman turns her wrath on the abuser. In fact, one of the experts testified that she was not aware of a situation where the syndrome had led to the torture and murder of an innocent, uninvolved third party. Therefore, the appellant has failed to prove that she received ineffective assistance of counsel on this ground.
As to the appellant’s argument that the sentencing phase evidence on this subject should have been introduced as mitigation, the trial court determined that the attorneys’ performance was ineffective for failing to have presented this syndrome as a mitigating circumstance; however, it held that the appellant failed to satisfy the prejudice prong of Strickland v. Washington, supra, because the jury returned an advisory verdict of life imprisonment without parole, and the trial court stated that, even if evidence of the syndrome had been presented, it would not have changed his decision to overrule the jury’s verdict. In its order, the trial court rejected the appellant’s claim, stating:
“Petitioner asserts that counsel should have presented testimony about the battered woman syndrome at the sentencing hearing before the judge. The court agrees with this assertion, but finds- that such evidence would not have changed the sentence imposed and that counsel’s deficiency in failing to present such evidence, therefore, did not prejudice petitioner’s defense.
“The evidence establishes that counsel was aware of the battered woman syndrome at the time of the sentencing hearing before the judge, even though he had not been aware of it at earlier stages of the trial. Counsel testified that publicity generated by the trial caused persons to contact him volunteering information about the battered woman syndrome. Under these circumstances, the standard of ‘reasonable professional assistance’ required that counsel present evidence of the battered woman syndrome at the sentencing hearing, for such evidence was obviously pertinent and significant on the sentencing decision to be made by the judge. It does not follow, however, that such evidence would have produced a different sentencing result.
“Extensive testimony about the battered woman syndrome has been presented in this proceeding and at previous post-trial hearings in this case. Testifying in support of the present petition was Dr. Lenore Walker, recognized as one of the foremost authorities in the country on the battered woman syndrome. Dr. Walker testified that a battered woman is a woman who is physically, sexually, and/or psychologically abused by a man with whom she is in a relationship in order for him to get her to do what he wants without regard for her desires or needs in the situation, and that the battered woman syndrome is a collection of psychological symptoms that sometimes develop in a woman who has been battered.
“Based upon extensive conversations with petitioner and the results of tests administered to her, Dr. Walker expressed the opinion that petitioner was a severely battered woman, that she was acting out her husband’s wishes, and that her criminal acts were committed as a way of coping with that abuse and protecting herself.
“Studies by Dr. Walker and others show that an alarming number of women in our society are victims of spousal abuse, and that many of them react in ways consistent with the battered woman syndrome. In a growing number of cases, the law has recognized the battered woman syndrome in judging the culpability of women who kill their batterers. Such recognition is entirely consistent with the legal concepts of self-defense and self-protection. A major distinguishing fact, however, between these cases and the one before the court is that the petitioner did not choose to kill her batterer. She chose, instead, to kill an innocent third party, a choice which falls outside any acceptable notion of self-protection. The battered woman syndrome offers no plausible explanation for that choice, and the court is unconvinced that the battered woman syndrome provides any reason for mitigating petitioner’s sentence. Moreover, there is no reason to think that this court would have been convinced otherwise at the sentencing hearing even if counsel had presented evidence of the battered woman syndrome at that time. Counsel’s failure to present evidence of the battered woman syndrome at the sentencing hearing did not prejudice petitioner’s defense and does not provide grounds for relief from the sentence.”
Without addressing the trial court’s determination concerning the deficiency of the attorneys’ performance, see Duren v. State, 590 So.2d 360, 366 (Ala.Cr.App.1990), affirmed, 590 So.2d 369 (Ala.1991), cert. denied, — U.S. -, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992) (an attorney’s decision not to present certain evidence as mitigation is a tactical one and is due a very strong presumption of’ correctness), it is clear that the appellant was not prejudiced by the attorneys’ failure to present any evidence concerning this syndrome at sentencing, because the trial court in its order stated that it would not have affected his decision. Therefore, we find that the appellant did not receive ineffective assistance of counsel because of her attorneys’ failure to introduce any evidence of the battered woman syndrome as mitigation during her sentencing hearing.
VII
The appellant argues that her attorneys performed ineffectively by failing to raise a number of claims in any of the previous proceedings or on appeal, thereby causing the claims to be procedurally barred in this second Rule 20 petition. However, a review of these claims indicates that each of them are meritless; therefore, her attorneys’ failure to raise them previously did not constitute ineffective assistance of counsel. See Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984).
Most of the alleged errors to which the appellant argues the attorneys should have objected were reviewed by this court on direct appeal pursuant to the plain error rule; Rule 45A, A.R.App.P., because as they concerned matters apparent from the record and were found not to have been erroneous. Neelley v. State, supra at 680. In fact, the record indicates that the appellant’s attorney did object to certain of these alleged errors. These alleged errors are as follows: an allegedly improper burden of proof instruction by the trial court; the introduction into evidence of the appellant’s taped confession, photographs of the victim, and testimony of the victim’s case worker and of other people whom the appellant attempted to pick up, or succeeded in picking up, for her husband; the admission of the appellant’s statements to the police; the trial court’s application of the aggravating circumstances that the crime was especially heinous, atrocious, or cruel when compared to other capital crimes; the inclusion on the jury of persons who had fixed opinions about the ease; certain alleged prosecutorial misconduct; the trial court’s override of the jury verdict; and the admission of victim impact evidence. Because we have previously found none of these errors to constitute reversible error, the attorneys were not ineffective for failing to object to them. Palmes v. Wainwright, supra.
The appellant also alleges that her attorneys were ineffective for failing to seek a change of venue and for failing to request individual voir dire. The record indicates that the veniremembers were examined in panels of 20, and both trial attorneys testified that they conducted extensive investigation into the backgrounds of the potential jurors. Moreover, the record indicates that the veniremembers were thoroughly examined and that many of them were examined individually. As to this claim, the trial court stated, “It is without dispute that trial counsel conducted both an extensive pretrial investigation of each member of the jury venire in a thorough and exhaustive voir dire examination. As a result of both the pretrial investigation and voir dire examination, trial counsel had ample information to assist [them] in selecting a fair and impartial jury.” The appellant has failed to demonstrate any ineffectiveness of counsel on this ground.
The appellant also argues that her trial attorneys should have moved for a change of venue because of the intense pretrial publicity in DeKalb County. However, one of the attorneys testified that he decided not to make such a motion, as part of his trial strategy, because he knew that there had never been a death penalty verdict returned in DeKalb County and because the jury returned an advisory verdict of life imprisonment without parole in this ease, so far as he knew, there still has never been such a verdict. He also testified that he was better able to conduct an extensive investigation into the jury panel in DeKalb County. The trial court properly found that the decision not to move for a change of venue was made pursuant to “a reasonable trial strategy, and was not a deficiency in his representation of petitioner.”
“In conclusion, there was little that trial counsel could have done to prevail in this case. Even if certain aspects of [their] trial strategy are deemed unreasonable, this did not prejudice [appellant] because of the overwhelming evidence against [her].” Zamora v. Dugger, supra at 961.
The judgment of the trial court denying the relief requested in the appellant’s Rule 20 petition is affirmed.
AFFIRMED.
All Judges concur.
Ex parte Judith Ann NEELLEY. (In re Judith Ann Neelley v. State).
1921808.
Supreme Court of Alabama.
June 10, 1994.
F. Timothy McAbee and Barry A. Ragsdale of McAbee, Nail, and Ragsdale, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Melissa G. Math, Deputy Atty. Gen., for respondent.
Although KENNEDY, J., did not attend oral argument, he has listened to the tape of that argument and has reviewed the record.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
SHORES, HOUSTON, KENNEDY, INGRAM and COOK, JJ., concur.
ALMON and STEAGALL, JJ., dissent.
[OPINION BY STEAGALL, Justice type=dissent]
STEAGALL, Justice
(dissenting).
I disagree with the Court of Criminal Appeals’ conclusion that the publicity contract between Judith Ann Neelley and her defense counsel, Robert French, Jr., did not adversely affect his performance of her defense. Although the contract was not signed until after the trial had concluded, there is evidence that it was in negotiation before that time and that the contract directly influenced French’s trial strategy.
The most questionable aspect of this strategy was having Neelley testify on her own behalf. French presented no evidence by the testimony of expert witnesses or by other means to establish Neelley’s “battered wife syndrome” defense, and he never consulted with any mental health professionals to learn about the disorder so that it could be explained rationally to a jury. Instead, French merely had Neelley herself describe Jier mental condition and her abusive husband. During the four-day direct examination, French elicited damaging testimony about the many lurid aspects of Neelley’s life; he also brought out detailed testimony about portions of Neelley’s pretrial confession and certain out-of-court statements made by her husband that had already been ruled inadmissible by the trial court and that the State had no way of bringing into evidence. The prejudice that this testimony caused is clear; the trial court’s sentencing order shows that it gave weight to her gratuitous testimony when it rejected the jury’s recommendation of life without parole and sentenced Neelley to death.
On direct appeal of her conviction, the Court of Criminal Appeals relied on Neelley’s testimony in rejecting at least one viable issue Neelley raised, that is, the possible illegality of her pretrial confession. See Neelley v. State, 494 So.2d 669 (Ala.Crim. App.1985), affirmed, 494 So.2d 697 (Ala.1986). The Court of Criminal Appeals stated that Neelley’s gratuitous account of her past “redefine[d] and [gave] new meaning to traditional concepts of depravity and evil” and “virtually annihilated any prejudicial effect that the admission of her confession could have had.” 494 So.2d at 678. The Court of Criminal Appeals emphasized that Neelley “volunteered” and “deliberately injected” that testimony into the trial and that it could not have been admissible had the State tried to bring it in. 494 So.2d at 677.'
Neelley’s testimony was central to French’s copyrighted, 400-plus page “appellate brief,” which he has attempted to market as the basis for a book or movie and from which, by his own admission, he still hopes to profit. There is evidence that when Neelley’s present counsel learned of the contract French attempted to prevent Neelley from showing it to them and hindered their attempts to investigate the negotiation of the contract.
After thoroughly reviewing the record on which this petition is based, I am convinced that the publicity contract between Neelley and French created an actual conflict of interest that adversely affected his ability to defend her. However abhorrent her crime, Neelley had a constitutional right to effective assistance of counsel; I think she was denied this right. I would therefore reverse the judgment of the Court of Criminal Appeals and order a new trial.
ALMON, J., concurs.
Judith A. NEELLEY, Petitioner-Appellant, v. John E. NAGLE, Warden, State of Alabama, Respondents-Appellees.
No. 97-6162.
United States Court of Appeals, Eleventh Circuit.
April 9, 1998.
Barry A. Ragsdale, King, Ivey & Junkin, Birmingham, AL, for Petitioner-Appellant.
John Gibbs, J. Clayton Crenshaw, Assts. Attys. Gen., Montgomery, AL, for Respondents-Appellees.
Before HATCHETT, Chief Judge,' and EDMONDSON and COX, Circuit Judges.
[OPINION BY COX, Circuit Judge: type=majority]
COX, Circuit Judge:
Judy Neelley appeals the district court’s denial of her habeas corpus petition in connection with her conviction for the kidnaping and murder of a 13-year-old girl. In her petition Neelley alleges that her trial counsel was ineffective because he operated under a conflict of interest. The district court considered the petition under the standards found in the Anti-Terrorism and Effective Death Penalty Act of 1996. We affirm.
I. BACKGROUND
Judy Neelley participated in a scheme in which she attempted to lure girls and young women into her car for the ultimate purpose of making them available to her husband, Alvin Neelley, for his sexual pleasure. As a part of this scheme, Judy Neelley abducted 13-year-old Lisa Ann Millican from a mall in Rome, Georgia, taking her to a motel room and handcuffing her to a bed to prevent her escape. After Alvin Neelley raped the girl over the course of several days, the Neelleys took Millican to the rim of Little River Canyon near Fort Payne, Alabama. There, Judy Neelley injected Millican with drain cleaner six times in an attempt to kill her. When this failed, Neelley shot her in the back and pushed her into the canyon.
Eventually, the Neelleys were arrested in Tennessee on bad-check charges, and Judy Neelley was extradited to Alabama to stand trial for Millican’s murder. She was tried in the Circuit Court for DeKalb County, Alabama. The trial judge found that Neelley was indigent and appointed local attorney Robert B. French, Jr. to represent her.
At trial, French presented the defense that Neelley was not criminally responsible for her actions because her husband had forced her to abduct and kill Lisa Ann Millican. Neelley testified that her husband habitually abused her and that her will had been subjugated to his through fear. The jury did not accept Neelley’s defense and found her guilty of the capital crime of murder during the course of a kidnaping. At the penalty phase of the trial, the jury recommended by a vote of ten to two that Neelley be sentenced to life imprisonment without parole. The trial judge, however, overrode the jury’s sentencing recommendation and sentenced Neelley to death.
On direct appeal, the Alabama state courts affirmed Neelley’s conviction and death sentence, see Neelley v. State, 494 So.2d 669 (Ala.Crim.App.1985), aff'd, Ex parte Neelley, 494 So.2d 697 (Ala.1986), and the United States Supreme Court denied her petition for a writ of certiorari, see Neelley v. Alabama, 480 U.S. 926, 107 S.Ct. 1389, 94 L.Ed.2d 702 (1987). Neelley then filed a petition for post-conviction relief in state court. That court denied the petition, a decision that the Alabama appellate courts upheld. See Neelley v. State, 531 So.2d 69 (Ala.Crim.App.1988), cert. denied, Ex parte Neelley, 537 So.2d 65 (Ala.1988), cert. denied, Neelley v. Alabama, 488 U.S. 1020, 109 S.Ct. 821, 102 L.Ed.2d 810 (1989). French represented Neelley throughout this time.
Next, represented by new. counsel, Neelley filed in state court a second petition for post-conviction relief that included a claim that French’s representation was unconstitutionally inadequate. The trial court held an evidentiary hearing on the ineffeetive-assis-tance-of-counsel claim, but denied the petition; the Alabama Court of Criminal Appeals affirmed. See Neelley v. State, 642 So.2d 494 (Ala.Crim.App.1993). The Alabama Supreme Court initially granted Neelley’s request for certiorari, but after hearing oral argument quashed the writ as improvidently granted. See Ex parte Neelley, 642 So.2d 510 (Ala.1994) (Almon and Steagall, JJ., dissenting). Neelley petitioned the United States Supreme Court for a writ of certiorari, which was denied. See Neelley v. Alabama, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995).
Neelley then filed a § 2254 petition in the United States District Court for the Northern District of Alabama. The district court adjudicated her petition under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, § 104, 110 Stat. 1214, 1218-19, which established new standards for habeas review of state court decisions. The court denied the petition without an evidentiary hearing, but issued a certificate of appealability, noting that Neelley’s petition raised novel issues regarding attorney conflicts of interest and the proper application of the AEDPA standards. Neelley now appeals.
II. DISCUSSION
A. Did the District Court Err in Applying the Amended Version of 28 U.S.C. § 2251 to Neelley’s Petition?
On April 24, 1996 President Clinton signed AEDPA into law. Title I of AEDPA amended the habeas corpus provisions of the United States Code, establishing new procedures and standards for use in habeas cases. Most significantly for purposes of this case, AED-PA establishes a more deferential standard of review of state court adjudications. Neelley contends that the district court erred in deciding to apply the amended version of § 2254(b), arguing (1) that AEDPA is an uneohstitutional ex post facto law as applied to her petition, and (2) that the new habeas provisions are inapplicable to her case because Alabama has not taken advantage of AEDPA’s “opt-in” provision.
1. As Applied to Neelley’s Petition, Is AEDPA an Unconstitutional Ex Post Facto Law?
Neelley first argues that application of AEDPA to her petition would be fundamentally unfair and a violation of the Constitution’s Ex Post Facto Clause, as AEDPA was not enacted until after she exhausted her state court remedies. This argument is without merit. In Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court addressed AEDPA’s constitutionality as applied to pending habeas cases, specifically holding that AEDPA constitutionally may be applied to habeas cases filed after AEDPA’s. effective date. AED-PA’s relevant provisions were enacted and became effective on April 24, 1996; Neelley filed her habeas petition a month later, on May 29,1996. Under Lindh, AEDPA constitutionally may be applied to Neelley’s petition.
2. Are the Amended Sections of Chapter
153 Applicable to Habeas Petitions From Prisoners in States That Do Not “Opt In” to AEDPA’s “Expedited” Habeas Provisions?
AEDPA also added Chapter 154, “Special Habeas Procedures in Capital Cases,” to Title 28 of the U.S. Code, providing for the expedited resolution of habeas eases in states that “opt in” to its provisions. To opt in, a state must establish procedures “for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have ... become final for State law purposes.” See 28 U.S.C.A. § 2261(b) (West Supp.1997).
Neelley argues that the amended version of § 2254 does not apply to her petition because Alabama has not instituted the required counsel appointment procedures. She misreads the “opt-in” statute, which, states specifically that “[t]his chapter [i.e., Chapter 154] is applicable,” if a state establishes the required procedures for appointment of counsel. 28 U.S.C.A. § 2261(b) (West Supp.1997) (emphasis added). Section 2254, on the other hand, is part of Chapter 158, the “non-expedited” habeas procedures that apply to all habeas cases. Therefore, the applicability of amended § 2254 is unaffected by whether a state has put appropriate counsel appointment mechanisms' in place. The district court did not err in applying the amended § 2254 to Neelle/s petition.
B. Did the District Court Err in Its Analysis of Neelley’s Claims Under 28 U.S.C. § 2251(d) as Amended by AEDPA?
Amended § 2254(d) states in pertinent part:
(d) An application- for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to,.or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254 (West Supp.1997). Neelley challenges the district court’s review of the state court’s actions, arguing that the state court’s adjudication of her claims indeed “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” Our task is to construe the meaning of this phrase consistent with Congress’ intent, this being a question of first impression in this circuit. We start with the plain language of the statute; see Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979), and we assume “that the legislative purpose is expressed by the.ordinary meaning of the words used,” Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962).
1. What Is the Proper Standard of Review Under § 225J)(d) as Amended by AEDPA ?
a. “Clearly Established”
Section 2254 forbids federal courts from granting habeas relief for claims previously adjudicated by state courts, unless the state court adjudication was contrary to or represented an unreásonable application of “clearly established Federal law, as determined by the Supreme Court of the United States.” Thus, the first step in resolving a petitioner’s claim is to determine the. “clearly established” law at the relevant time. The “clearly established” language echoes the concerns underlying the Supreme Court’s decisions in Teague v. Lane and its progeny:
Our holding in Teague rested upon the historic role of habeas corpus in our system of law, which is to provide a deterrence, the threat of which serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. Deterrence and threat are meaningless concepts as applied to a situation in which the law is so uncertain that a judge acting in all good faith and with the greatest of care could reasonably read our precedents as permitting the result the habeas petitioner contends is wrong.
Penry v. Lynaugh, 492 U.S. 302, 352, 109 S.Ct. 2934, 2964, 106 L.Ed.2d 256 (1989) (Scalia, J., concurring in part, dissenting in part) (quotations and citations omitted); see also, e.g., Hogan v. Hanks, 97 F.3d 189, 192 (7th Cir.1996) (“Both Teague and the amended § 2254(d)(1) are designed to ensure that state judgments are not affected by legal rules established or materially expanded after the conviction has become final.”), cert. denied, — U.S. -, 117 S.Ct. 1439, 137 L.Ed.2d 546 (1997). Under Teague, a federal court evaluating a petitioner’s claim that he should have had the benefit of a rule of constitutional law must- “survey the legal landscape” to determine whether the rule is “new.” Glock v. Singletary, 65 F.3d 878, 884 (11th Cir.1995) (en banc), cert. denied, — U.S. — -, 117 S.Ct. 616, 136 L.Ed.2d 540 (1996). A rule is not “new” if a state court considering a habeas petitioner’s claim would have felt “compelled by existing precedent” to conclude that the rule the petitioner seeks was required by the Constitution. See Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). We think that a similar analysis obtains under the “clearly established” language of § 2254, as a rule that is “new” cannot be “clearly established.” See Hogan, 97 F.3d at 192 (“[A] rule [is] not ‘clearly established’ unless it [is] ‘compelled by existing precedent.’ ”). Thus, a district court evaluating a habeas petition under § 2254(d) should “survey the legal landscape” at the time the state court adjudicated the petitioner’s claim to determine the applicable Supreme Court authority; the law is “clearly established” if Supreme Court precedent would have compelled a particular result in the case.
b. “Contrary To”/“Unreasonable Application Of’
The other standard within § 2254(d) that requires interpretation is the requirement that the state court adjudication “result[ ] in a decision ... contrary to, or involve[ ] an unreasonable application of’ the law. At first glance each of these phrases could be read to swallow the other. On one hand, it is difficult to imagine a decision “contrary to” existing Supreme Court precedent that does not “involve an unreasonable application” of law. On the other hand, a federal court reviewing a state court decision in the context of a habeas petition, could read the “contrary to” language as permitting issuance of the writ whenever a state court errs, thereby vitiating the “unreasonable application” clause. Our interpretation of the statute, however, should not nullify either clause, but should give effect to both. See United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1992).
Giving the phrase “contrary to” its plain meaning, we can readily think of two situations in which a state court decision would be “contrary to” clearly established Supreme Court case law. The first is when a state court faces a set of facts that is essentially the same as those the Supreme Court has faced earlier, but given these facts the state court reaches a different legal conclusion than that of the Supreme Court. A second situation is one in which a state court, in contravention of Supreme Court case law, fails to apply the correct legal principles to decide a case. Such a result would be “contrary” in the sense that the state court has not adjudicated the claim in the manner prescribed by the Supreme Court. Both of these types of errors are errors of pure law; in the first case, a state court has denied a petitioner a constitutional right defined by the Supreme Court in its role as interpreter of the Constitution, while in the second the state court has failed to apply the proper law to a case. In either case, the federal court reviewing a petition under § 2254 independently determines what is “clearly established Federal law as determined by the Supreme Court” and may grant habeas relief if the state court has decided a question of law incorrectly.
If the state court has applied the proper law, the federal court must then determine whether the state court’s application of that law was “unreasonable.” By its very language, “unreasonable application” refers to mixed questions of law and fact, when a state court has “unreasonably” applied clear Supreme Court precedent to the facts of a given case. See Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.1996) (“[W]hen the dispute lies not in the meaning of the Constitution, but in its application to a particular set of facts ... see. 2254(d)(1) restricts the grant of collateral relief.... ”), reversed on other grounds, - U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
What does it mean to say that a state court has “unreasonably” applied the proper law? It does not mean that a federal court may grant habeas relief simply because it disagrees with the state court’s decision. This would amount to de novo review, which Congress clearly' did not intend. See H.R.Conf.Rep. No. 104-518 at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944 (stating that the amended section “requires deference to the determinations of state courts that are [not] ... ‘unreasonable application[s]’” of federal law). Moreover, the mere fact that a district court disagrees with a state court does not render that state court’s decision “unreasonable”; certainly two courts can differ over the proper resolution of a close question without either viewpoint being unreasonable. The Fifth Circuit has incorporated this principle into its interpretation of the statute, holding that under § 2254 a federal court can grant the writ “only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.” Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). We find this reasoning persuasive and adopt the Fifth Circuit’s standard.
Thus, as we read the statute, a court evaluating a habeas petition under § 2254(d)(1) must engage in a three-step process: First, the court must “survey the legal landscape,” using an inquiry similar to that under Teague, to ascertain the federal law applicable to the petitioner’s claim that is “clearly established” by the Supreme Court at the time of the state court’s adjudication. Second, the court must determine whether the state court adjudication was contrary to the clearly established Supreme Court case law, either because the state court faded to apply the proper Supreme Court precedent, or because the state court reached a different conclusion on substantially similar facts. If the state court’s decision is not contrary to law, the reviewing court must then determine whether the state court unreasonably applied the relevant Supreme Court authority. The state court decision must stand unless it is not debatable among reasonable jurists that the result of which the petitioner complains is incorrect.
2. Did the District Court Err in Applying § 2251(d) ?
a. Ineffective Assistance of Counsel
We now evaluate the district court’s resolution of Neelley’s claims. Neelley claims that her trial counsel, Robert French, provided ineffective assistance in violation of her Sixth Amendment right to counsel. She first argues that French was ineffective because he operated under a conflict of interest while representing her. Neelley asserted this claim in her second petition for state collateral relief, and the Alabama Court of Criminal Appeals ruled against her on the merits. See Neelley v. State, 642 So.2d 494, 504-05 (Ala.Crim.App.1993). Thus, this claim was “adjudicated on the merits in State court proceedings” and must be evaluated under § 2254(d).
Neelley points to a publicity contract between her and French entitling him to one-half of the profits from the commercialization of her story, in clear violation of the Alabama Rules of Professional Conduct. See Ala. Rules of Professional Conduct Rule 1.8(d) (1991). Although this contract was not signed until three months after Neelley’s trial, Neelley alleges that the execution of the contract was a mere formality, and that throughout her trial French exhibited signs that he was motivated by the possibility of profit. She asserts that French’s conflict of interest manifested itself in actions taken during his representation. She alleges that during the trial French told her of his plans to write a book about her case; that French has subsequently copyrighted the brief he wrote for Neelley’s direct appeal; and that he has incorporated the majority of that brief into a 400-page manuscript for publication. She also alleges that French began referring to her as his “million dollar baby” almost two months before she signed the contract. Neelley notes that French by his own admission did not have previous experience with contracts of this kind, and that the presentation and execution of the contract so soon after the trial indicates that French must have- researched and drafted the contract at least in part during the trial. Finally, she points to various actions taken by French that she contends were designed to sensationalize her trial and give her story more media appeal. Specifically, she argues that French failed to object to shocking and graphic evidence of the horrific nature of her crime, had her testify in gory detail regarding the crime and her motivation, failed to consult with her about the possibility of a plea bargain, and made inflammatory and sensational statements to the press.
Under the first step of the § 2254(d) inquiry we must ascertain the clearly established federal law as determined by the Supreme Court. The cases that govern Neelley’s claim are Strickland v. Washington and Cuyler v. Sullivan. The Alabama Court of Criminal Appeals evaluated Neelley’s claim under Strickland and Cuyler. The facts of those two cases are different from the facts of Neelley’s case; thus, the state court’s result cannot be said to be “contrary” to Strickland or Cuyler. Its decision therefore is not “contrary to” clearly established federal law, and passes the second part of the § 2254(d) inquiry. All that remains is for us to determine whether the Alabama court unreasonably applied Strickland and Cuyler to the facts of this case.
Under Strickland, a petitioner claiming ineffective assistance of counsel must prove both that her attorney was ineffective and that this ineffectiveness prejudiced her. Prejudice for Strickland purposes may be presumed if a defendant demonstrates that counsel “actively represented conflicting interests” and that this actual conflict of interest “adversely affected [her] lawyer’s performance.” Cuyler, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718. The record indicates that the publicity contract in question was not signed until June 24, 1983, three months after Neelley’s trial and the filing of her motion for a new trial. The state trial court found that the publicity contract created an actual conflict of interest, but ruled that the conflict did not adversely affect French’s performance. The Alabama Court of Criminal Appeals disagreed, concluding that Neelley had failed to prove that French labored under an .actual conflict of interest. On the contrary, the court stated that “it is clear from the record that [Neelley’s] attorney zealously and wholeheartedly represented [Neelley’s] interests ..., and earnestly participated in all aspects of the proceeding.” Neelley, 642 So.2d at 504. As the court concluded that French had not operated under an actual conflict of- interest as required for relief under Cuyler, it declined to address Neelley’s particularized allegations of ineffectiveness. See Neelley, 642 So.2d at 504 (citing Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719).
We cannot say that the Alabama appellate court unreasonably applied Cuyler to the facts of this case. Although it certainly appears that French’s actions represent a serious violation of Alabama’s ethics rules, it also appears that he competently represented her interests, and no others, throughout the course of the trial. Based on the record, it was not unreasonable for the Alabama Court of Criminal Appeals to find only the existence of a potential conflict of interest, rather than an actual conflict. The district court did not err in rejecting Neelley’s ineffective-assistance-of-counsel claim.
b. Failure to Turn Over Materially Exculpatory Evidence
Neelley also argues that the prosecution failed to turn over material exculpatory evidence. Soon after Neelley was arrested, authorities, including Investigator Tony Gilliland of the Chattooga County Sheriffs Office, searched the mobile home where she and her husband had lived and seized several documents, mostly correspondence between Neelley and her husband. Neelley’s attorneys attempted to acquire these letters prior to trial, but Investigator Gilliland claimed that he did not know where the letters were. Neelley did not acquire -the letters until February 1985, when Gilliland’s estranged wife contacted Neelley’s attorney and told him about the letters and their whereabouts. Neelley claims that this evidence would have aided her in her defense at trial because it would have shed light on her role in the offenses and her relationship with her husband. Neelley raised this claim in her first petition for state collateral relief and was denied relief by the Circuit Court of DeKalb County, Alabama.
For purposes of this claim, the clearly established federal law is set out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Under Brady, the government may not lawfully convict a defendant if the government has suppressed material exculpatory evidence when the defense requested it. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Bagley holds that evidence is material if there is a reasonable probability — that is, a probability sufficient to undermine confidence in the outcome— that the result of the proceeding would have been different had the defense had the evidence. Bagley, 473 U.S. at - 682, 105 S.Ct. at 3383. The DeKalb County circuit court determined that the state had indeed wrongfully withheld the letters from Neelley’s attorneys, but concluded there was no reasonable probability that introduction of the letters would have changed the outcome of the trial. In so doing, however, the court contravened the Supreme Court’s command that evidence must be analyzed collectively, not item by item, for Bagley materiality. See Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995). The DeKalb County circuit court, the only Alabama court to have written on this point, analyzed each letter for its likely individual effect on the outcome of the trial, but did not analyze the letters’ collective effect. This piecemeal approach is “contrary to” clearly established federal law; therefore, we must independently consider the merits of Neelley’s claim.
The majority of the withheld evidence consists of correspondence between Neelley and her husband. Neelley argues that these letters would have supported her defense at trial that she was completely dominated by her husband. Some of these letters contain references that might have been helpful to Neelley’s defense; in some letters Neelley refers to her husband as having telepathy or “ESP,” and others show that she feared whát he would do to her if he became angry. However, most of the letters are written in a loving and spirited, rather than meek or. submissive, tone. Indeed, in some of the letters Neelley plainly defies some of her husband’s demands and threats that she feels are excessive. The remaining three documents in question are barely probative, much less exculpatory. Considering the possible effect of all of the documents at issue, there is no reasonable probability that their introduction would have enhanced Neelley’s chances of a favorable outcome at trial. To the extent that the documents could be read to support Neelley’s claim of total domination by her husband, they were merely cumulative of many other similar pieces of correspondence that were introduced by the defense at trial. Cf. Arizona v. Youngblood, 488 U.S. 51, 71, 109 S.Ct. 333, 344, 102 L.Ed.2d 281 (1988) (to be material, exculpatory evidence must be more than merely cumulative). Thus, we affirm the district court’s denial of relief on Neelley’s Brady claim as well.
CONCLUSION
For the aforementioned reasons, we conclude that the district court did not err in denying Neelley’s petition for a writ of habeas corpus.
AFFIRMED.
Neelley also argues in the alternative that the district court should have conducted an evidentiary hearing to determine whether Alabama has put in place the necessary counsel appointment mechanisms. Because the new § 2254 applies regardless of whether Alabama has opted in, an evidentiary hearing is unnecessary.
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
The overlap between the statute and Teague is not complete. For example, under Teague a rule is new if it is not clearly established at the time a habeas petitioner's conviction becomes final, whereas the language of § 2254 would seem to indicate that the law must be clearly established at the time the state court makes the adjudication under review. However, we have no need to determine the exact overlap between Teague and § 2254 in this case because the Supreme Court case law governing Neelley’s contentions was manifestly clear at all relevant times.
Like the "clearly established” requirement, this standard is akin to the Teague doctrine: At bottom ... the Teague doctrine validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.... Accordingly, we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court. O'Dell v. Netherland, - U.S. -, -, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997) (citations and quotations omitted).
The Fifth and Seventh Circuits have considered the meaning of the statutory language and likewise have concluded that the two clauses give standards for review of questions of law ("contrary to”) and mixed questions of law and fact ("unreasonable application of”). See Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir.1996); Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.1996), reversed on other grounds, - U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). But see Larry Yackle, A Primer on the New Habeas Corpus Statute, 44 Buff.L.Rev 381, 442 n. 192 (1996) (disagreeing with this interpretation).
466 U.S. 668, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984).
446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
Neelley's ineffective-assistance-of-counsel claim also rested on other factual predicates. She alleged that French solicited and encouraged an improper sexual relationship with her, and that he failed to put on a defense based on battered-woman syndrome. The Alabama Court of Criminal Appeals rejected both of these claims. See Neelley, 642 So.2d at 497-509. Except to say that the Alabama court did not unreasonably apply clearly established law in rejecting these claims, they do not merit further discussion, see 11th Cir.R 36-1, and we affirm the district court's denial of relief as to them.
The Alabama Court of Criminal Appeals affirmed the denial of relief without opinion, see Neelley v. State, 531 So.2d 69 (Ala.Crim.App. 1988), and both the Alabama Supreme Court and United States Supreme Court denied certiorari, see Ex parte Neelley, 537 So.2d 65 (Ala.1988); Neelley v. Alabama, 488 U.S. 1020, 109 S.Ct. 821, 102 L.Ed.2d 810 (1989).
Although Kyles was decided in 1995, eight years after the Alabama court's denial of Neelley’s petition for collateral relief, the Kyles Court characterized its opinion as a mere explanation of the rule already set forth in Bagley. See Kyles, 514 U.S. at 434, 115 S.Ct. at 1565-66. In fact, this court has stated that Kyles did not announce a new rule. See Hays v. Alabama, 85 F.3d 1492, 1498 (11th Cir.1996) (“The Supreme Court recently decided Kyles v. Whitley ..., which discussed the ‘reasonable probability’ standard of Brady. Without announcing new rules, the Court cited four guideposts for determining materiality.”), cert. denied, — U.S. -, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997) (citations omitted). Thus, for purposes of this case we consider this aspect of materiality analysis to have been clearly established in 1985 in Bagley, and thus clearly established at the time the DeKalb County circuit court ruled on Neelley's claim.
One of the pieces is a letter written on Neelley’s behalf from Marion Mixon, an attorney in Albany, Georgia, to the Georgia Department of Human Resources, which Neelley claims would have aided her in contacting this former attorney. However, Neelley made no showing that she could not have contacted Mixon without the letter; indeed, a letter from Alvin Neelley introduced at trial refers to Mixon. The second piece is a letter to Alvin Neelley’s mother from his former wife, which has no bearing on Judy Neelley's defense. The final piece is a document with the heading "Classification Committee Actions” that shows Alvin Neelley’s job assignment in prison as that of Chaplain’s Aide.