author: BASCHAB, Judge. COBB, Judge,

text:
    Roger CALHOUN v. STATE of Alabama.
    CR-05-1101.
    Court of Criminal Appeals of Alabama.
    Nov. 3, 2006.
    Rehearing Denied Dec. 8, 2006.
    Certiorari Denied Feb. 9, 2007 Alabama Supreme Court 1060471.
    J. Barry Abston, Huntsville, for appellant.

      Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM. NO OPINION.

McMILLAN, P.J., and WISE, J., concur; SHAW, J., concurs in the result; COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

In its memorandum, the majority affirms Roger Calhoun’s capital-murder conviction and sentence of life imprisonment without parole. Calhoun argued that the trial court erroneously excluded his expert witness, Gregory Hopkins, from testifying because, according to the trial court, Calhoun failed to provide the State with a copy of the document Hopkins had prepared and given to defense counsel. The trial court found, and the majority agrees, that the document was a “report” within the meaning of Rule 16.2(c), Ala. R.Crim. P., and was therefore discoverable by the State. The trial court informed Calhoun that he would not be able to call Hopkins as a witness unless he provided the document to the State. Calhoun refused to provide the document to the State, arguing that the document was not discoverable because it was an internal defense document, and Hopkins was not permitted to testify. I have examined the document and have attached it to this dissenting opinion. The document is clearly an internal defense memorandum intended for use only in the investigation and defense of the case. Therefore, pursuant to Rule 16.2(d), Ala. R.Crim. P., the document was not discoverable. The trial court erred in determining otherwise. The court also committed reversible error when it refused to allow the defense expert to testify because it had determined that the document prepared by the expert had to be provided to the State and defense counsel had refused to provide.it. Because Calhoun’s right to present expert testimony to support the theory of defense in his case was foreclosed by the trial court’s errors, I must dissent.

Rule 16.2(c), Ala. R.Crim. P., provides, in pertinent part, that upon written request of the State the defendant shall provide

“results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, which are within the possession or control of the defendant and which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial, if the results or reports relate to the witness’s testimony.”

Rule 16.2(d), Ala. R.Crim. P., excludes some items from discovery. That rule provides, in pertinent part, “[ejxcept as to scientific or medical reports, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or the defendant’s attorneys or defendant’s agents in connection with the investigation or defense of the case .... ” (Emphasis added.)

The majority contends that the document prepared by Hopkins was “a report detailing Hopkins’ findings based on the evidence.” While that is, to some extent, an accurate description of the document Hopkins provided, that does not support the trial court’s determination or this Court’s holding. The document included some of Hopkins interpretations of the evidence obtained at the scene. More importantly, however, the document included Hopkins theory of case — that one of the victims was shot accidentally and that the other victim was shot in self-defense. The document includes reference to weaknesses in the defense, such as, “[t]his is where it looks bad for [the defendant],” and “[t]he problems [for the defense theory] are the two postmortem wounds and fleeing, which can be explained.” It cannot possibly be considered appropriate to order disclosure of documents that include an analysis of the weaknesses of the defense’s case. Rule 16 does not require this and to order the disclosure of such documents violates Rule 16.2(d) and the fundamental fairness and constitutional protections that are to be afforded to every defendant. Furthermore, Hopkins’s memorandum includes a recommendation to defense counsel on how they should qualify him as an expert and present his testimony to the jury. This, too, indicates that the memorandum was not simply a report of findings based on Hopkins’s examination of the evidence, but that it was in internal document regarding defense strategy. Finally, Hopkins conducted no physical or mental examinations or scientific tests or experiments; thus, his memorandum was not a “report” of any of those items.

Because the document prepared by Hopkins was an internal defense memorandum made by one of the “defendant’s agents in connection with the investigation or defense of the case,” Rule 16.2(d), Ala. R.Crim. P., the document was not discoverable. The trial court erred to reversal when it required that Calhoun provide Hopkins’s document to the State and when it precluded Hopkins from testifying when Calhoun refused to do so. The trial court prevented Calhoun from presenting testimony essential to his defense. This fundamental error cannot be considered harmless.

Based on the foregoing, I dissent.

A-Ho,chrí\eí\t

ANALYSIS OF EVIDENCE IN CALHOUN V. STATE FOR: RANDY GLADDEN; CECILIA POPE BY: GREGORY N. HOPKINS

Sheri Shepard Calhoun was shot in left forearm at a range of 8* or less (b/c stippling will not occur out of 2” bbl over .20 cm Di Malo p. 71⅛ Bullet went from back of forearm out inside of it to enter Sheri’s chest Keyhole entry wound in chest (poss.) Substantiates Defendant’s claim that she was shot during the struggle between he and Bobby. That Bobby would draw a gun and threaten Defendant with it is substantiated by the feet that he had a pocket holster in his pants pocket that was too big for the little 25 auto. (p. 4 Hutchinson’s report). Conclusion, Bobby was carrying foe stainless, Colt 38 Detective Special in his pocket at the outset of the argument

A shootout ensued from foe point of Sheri being shot It is dear from foe evidence that Bobby was in the hallway firing into foe den at a downward angle (from damage to candi pillows and end table). He used the hallway doorframe as partial cover. Roger was apparently douching down behind foe couch and/or coffee table, as shown by foe bullet strikes in Bobby’s body (lower torso and forearm, paths at upward angles). The bit in foe left forearm occurred when Bobby refiexivdy cither stuck it out to protect himself before he ran, or, if firing two-handed, while shooting at Defendant. From the nature of foe injuries, Bobby took foe hit in foe rigid outside thigh while bladed to shoot at Defendant. The shot to the interior right thigh and stomach came as be turned to flee. The shot to the chest is probably what caused him to run, coincident with him running out of ammo. The unfired round (Ex. #10) with dented primer found in the hallway door to den is likely the round that Defendant says Bobby first tried to fixe, next to a casing. (Ex. #12).

Here is a mystery. Roger says he took foe first gun away from bobby. Roger dumped the cases from his gun from where he fired at Bobby, (south of foe couch/coffee table, Ex. #’$ 2,3,4,5,6,7) that accounts for those rounds in Bobby’s original gun, except foe misfire. Bobby dumped his cases from foe empty, blued Colt 38 in the hallway by foe bathroom (Ex. #’s 13,14,15,16,17,18). Who dumped out foe spent case and foe unfired round and why is unknown. I can only speculate that while Bobby went for the second Colt, Roger had time to find cartridges and reload two rounds before he saw Bobby coming back down the hall rearmed, whereupon Roger retreated to the south end of foe couch/coffee table.

Bobby’s .38 back wound came as he spun away from Defendant to free down the hall. At this point, it would have been nearly impossible for Defendant to tell if he’d hit Bobby or not Roger’s own wound, altering on foe right dorsal area and exiting foe left. Shows he was crouching and bladed with his right side toward Bobby during the shootout Note: It may have been inflicted during foe first straggle also, since there is apparent stippling of a close-range shot at the entry wound.

Wounded, knowing guns were all over the house and many loaded, Defendant would obviously be confused as to what to do, and thinking that Bobby may return to finish him oSE, now feat Defendant’s gun was empty. Bobby retreated to a bedroom where Defendant knew there would be both long guns end hand guns. To flee might mean he’d be killed as he started his motorcycle, or vulnerable to pistol, shotgun, or rifle fire up to at least 100 yards down the street He had only seconds to decide. He might be able to tell from the hall carpet that Bobby was hit, but couldn’t know bow badly. (H& was hit yet functioning) (The hall carpet blood may be Sheri’s) To keep Bobby from killing him as he fled, he snatched up the .410 shotgun and the ¿5 auto. Fearing for his life, he kicked open the bedroom door and shot Bobby.

Bobby, meanwhile, was panicked and losing blood. He tried to jam a .357 round into flic .38, but gave up, realizing it wouldn’t fit or fire. He forgot about the loaded .357 in the drawer below. He tried to push open toe storm window and escape, hut Roger would have burst in then. Bobby tried to get a shotgun from under the bed, but Defendant shot him with flic shotgun, putting turn down. He died from trauma and blood loss soon after he hit the floor.

This is where it looks bad for Roger. Bobby was shot through the cheek with a .25 round that passed into the wall. There is no blood from the wound and the yellow tissue around the entry indicates m post mortem wound. Ditto fire neck shot. After shooting Bobby twice when he was clearly no longer a threat, the gun jammed on Roger. It is clear he deliberately placed the 125 auto on bobby to try to make it look like he’d had it and was firing nr irivnit tn fire nl Defendant, hi if ⅛⅛ is el erntv not the case.

In Defendant's natural confusion at lids time, his action altering the crime harks bad: to the old “If you shoot a burglar with one leg made the window and he fells outside, drag him in and put a butcher knife in his hand.” His second mistake is fleeing the scene, claiming Sheri told him to. The natural thing would have been to reader first aid until HEMSI arrived. Look for the prosecutor to emphasize this.

IBs driving around, seeking assistance, saying he wanted to kill himself, and attempt at “blue suicide" atthc ERmx si! symptomatic of the kind of total confusion that hits people in deadly force incidents. It does not necessarily show clear intent to flee or cover the crime. Had he wished to kill Shai and Bobby from the outset, he had a more accurate and powerful gun in his saddlebags. Moreover, U.S. studies hove shown that there is a built-in aversion in humans to killing another human being. Soldiers must be trained out of it to get more than 14% to even fire their weapons in combat

It seems to me that fire bulk of fee evidence shows Sheri was shot accidentally, and Bobby was killed in self-defense. The problems are fee two postmortem wounds and fleeing, which can be explained.

Finally, I think you should qualify and present me as an expert oo firearms, use-of-foree methods and law of self-defense. This is broad enough to allow me to speak to fee psychological aspects and terminal effects of bullets as well.


source: Caselaw Access Project

author: WELCH, Judge.

license: Public Domain

text:
    STATE v. J.R.M.
    CR-05-0949.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellant.
    Richard L. Fricks, Boaz, for appellee.
   WELCH, Judge.

The State appeals from an order of the Morgan Circuit Court dismissing all charges pending against J.R.M. The circuit court’s decision was based upon its finding that J.R.M. had entered into a plea agreement that called for the dismissal of the charges in exchange for J.R.M.’s assistance as a confidential informant.

J.R.M. was indicted on charges of trafficking in methamphetamine, a violation of § 13A-12-231, Ala.Code 1975; unlawful possession of a controlled substance, a violation of § 13A-12-212; second-degree unlawful possession of marijuana, a violation of § 13A-12-214; and possession with intent to use drug paraphernalia, a violation of § 13A-12-260. After being indicted, J.R.M. approached members of the Morgan County Drug Task Force about “working off some charges.” (R. 6.) He worked with task-force members as a confidential informant, providing information that led to nine arrests; however, the Morgan County District Attorney did not accept the recommendation of task-force officials that all the charges in two pending indictments against J.R.M. be dismissed. Instead, the district attorney offered J.R.M. a 25-year prison sentence in exchange for a guilty plea to unlawful possession of a controlled substance. After receiving that offer, J.R.M. filed a motion to show cause why the plea agreement should not be enforced.

Evidence adduced during the hearing on the motion tended to show the following. Task Force Investigator Jim England testified that, after J.R.M. asked about “working off some charges,” he agreed to let J.R.M. work for him as a confidential informant on several occasions. On those occasions, J.R.M. provided “substantial assistance” to law enforcement officials. (R. 12.)

England explained that law enforcement agencies and the Morgan County District Attorney’s Office had a “general format that if this subject is charged with this and they do this amount of work, it’s generally recognized that that’s what’s going to happen.” (R. 14.) Such agreements were rarely reduced to writing. He added that he had no reason to believe that the “general format” would not be followed in this case.

England denied telling J.R.M. explicitly that the charges against him would be dismissed if he worked with the task force; he said he told J.R.M. only that he would recommend to the district attorney that the charges against J.R.M. be dismissed. He did say, however, that J.R.M. constantly asked how things were progressing toward dismissal of his cases. When asked by defense counsel, “Did you ever on any occasion tell my client that things were moving forward to the goal, which was to have his cases dismissed?” England replied, “As far as I’m concerned, yes, sir, on my part.” (R. 13.) He also said that it was his understanding that J.R.M. was working as a confidential informant because J.R.M. wanted to have the charges against him dismissed.

J.R.M. did everything that was asked of him as a confidential informant for the drug task force. England acknowledged that the role of confidential informant is potentially a very dangerous one. (R. 15-16.)

J.R.M. testified that law enforcement officials from both the drug task force and the City of Decatur told him that, “if I did enough [to assist them] that [the charges] could be made [to] go away.” (R. 34.) He admitted that he never discussed dismissal of the charges with anyone in the Morgan County District Attorney’s Office. He said he thought “Mr. Jim [England] was representing me” in discussions with the district attorney. (R. 41.)

After the hearing, the circuit court dismissed all of the charges pending against J.R.M., stating, “I believe that you were allowed to believe that you had an agreement to work these off, and I also believe that you did everything you were asked to do.” (R. 52.) ‘Whether Mr. England overextended himself or not I don’t know. But I think more harm would come to the community by me not honoring the agreement that you thought you had and then making it harder for them in the future to make deals because that’s the way it’s done.” (R. 53-54.)

In the circuit court’s written order dismissing the indictments, the circuit court made the following findings:

“It seemed apparent to this Court that the officers were willing to promise the defendant whatever they had to in order to insure the defendant’s cooperation. In effect, the officers promised the defendant that if he did what he was asked to do that his cases would in fact be dismissed. Further, it is undisputed that the defendant did everything he was asked to do by the law enforcement officers.
“This Court finds that the defendant was allowed to believe that he had an agreement with law enforcement to have his charges dismissed and the approval of the District Attorney was a mere formality. The defendant did everything he was asked to do while under the belief his cases would in fact be dismissed. The Court further finds that if this Court does not recognize this type of agreement, future investigations of this nature will be significantly hindered.”

(R. 36.)

The State argues that there was no agreement of any kind between the district attorney’s office (as opposed to the law enforcement officials with whom J.R.M. worked) and J.R.M., and because the district attorney’s office was not a party to the agreement between J.R.M. and law enforcement officials, it could not be bound by it. Thus, the State asserts, the trial court abused its discretion in finding there was a valid plea agreement and dismissing the indictments against J.R.M.

The appropriate standard of review is set forth in Sides v. State, 575 So.2d 1232 (Ala.Crim.App.1991):

“We start with the premise that this court will not disturb the decision of the trial court, in relation to the findings concerning the plea bargain agreement, unless a clear abuse of discretion has been shown. See McKee v. State, 253 Ala. 235, 44 So.2d 781 (1949).
“ ‘This Court will not interfere with the trial court’s exercise of discretion unless a clear abuse in the exercise of that authority has been shown. Woods v. State, 367 So.2d 982, 984 (Ala.1978). The trial judge’s actions are presumptively correct in the absence of a showing to the contrary. Ballard v. State, 236 Ala. 541, 542,184 So. 260 (1938). On appeal, error is not presumed and the party claiming that a trial judge has abused his discretion has the burden of persuasion. [Citation omitted.]’ ”

575 So.2d at 1234 (quoting Gratton v. State, 456 So.2d 865, 872 (Ala.Crim.App.1984)).

In Madison v. State, 561 So.2d 1123 (Ala.Crim.App.1990), we considered whether the trial court had abused its discretion in denying the defendant’s motion to enforce a plea agreement allegedly made between the defendant and police. The police had promised the defendant that they would “make a recommendation of leniency to the district attorney’s office if the [defendant] proved to be a ‘rehable informant.’” 561 So.2d at 1124. As in this case, the defendant did not discuss an agreement with the district attorney’s office.

In affirming the order of the trial court denying the defendant’s request to enforce the plea agreement, this Court relied on a decision of the United States Court of Appeals for the Fourth Circuit, Cooper v. United States, 594 F.2d 12 (4th Cir.1979), which set forth the conditions under which the government could withdraw from a plea agreement. We quoted from Cooper as follows:

“ Within the general constitutional framework of substantive due process, here given an added dimension by the necessary implication of the right to effective assistance of counsel, we conclude that the defendant’s constitutional rights were here violated by the government’s failure to honor its plea proposal. In so holding, we emphasize those factual elements most crucial to our finding of right and violation in order to confine our holding as narrowly as we may for decision. Here [1] the proposal was specific and unambiguous in form, and [2] was made unthout any reservation related to a superior’s approval or otherwise; [3] its content was reasonable in context; [4] it was made by a prosecutor with apparent (and probably actual) authority at the time; [5] it was communicated promptly to the defendant so that no question of staleness was involved; [6] the defendant assented promptly and unequivocally to its terms, indicated his assent to his counsel, and was entitled so far as the record shows to assume that its communication to the government would consummate the plea agreement; defense counsel did in fact within a matter of a few hours communicate defendant’s acceptance to the government, by sheer fortuity being told of the government’s “withdrawal” before he could vocalize his client’s “acceptance”; and finally, [7] the reason for the attempted withdrawal had nothing to do with extenuating circumstances affecting the government’s or any public interest that were unknown when the proposal was extended....’”

Madison, 561 So.2d at 1125-26, quoting Cooper, 594 F.2d at 19 (emphasis supplied in Madison).

In Madison, this Court determined that the “agreement” between the defendant and the police failed to satisfy elements 2 and 4 as set forth in Cooper, that is, that the agreement was not made without any reservation related to a superior’s approval or otherwise and was not made by a prosecutor with at least apparent authority. In determining that a valid agreement did not exist, we found that “[t]he record is devoid of any evidence that the prosecutor consented to, or was even aware of, this ‘agreement.’ ” 561 So.2d at 1126.

Here, the evidence tends to show that, as was the case with the defendant in Madison, J.R.M. entered into an agreement with members of the drug task force, but he did not have any discussions with the district attorney’s office. There is no evidence in the record to indicate that the district attorney’s office was in fact aware of the agreement.

Although we understand the trial court’s rationale behind dismissing the indictments against J.R.M., we are bound by precedent, which holds that the State cannot be bound by a plea agreement to which it was not a party. Moreover, we do not believe that allowing law enforcement officers to make agreements that the district attorney does not know of or approve is a good practice. Therefore, we hold that the trial court abused its discretion in finding that a valid plea agreement existed and in dismissing the indictments against J.R.M.

For the reasons set forth above, the order of the Morgan Circuit Court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN, SHAW, and WISE, JJ., concur.

      . Because the appellant is a confidential informant whose work with law enforcement resulted in several arrests and convictions, his role as a confidential informant serves as the basis for the appellant’s grounds for appeal and so the fact must be included in this opinion. Thus, out of an abundance of caution, this Court will use the appellant’s initials in this opinion.

      . The Morgan County Drug Task Force is part of the Morgan County Sheriffs Department. Task Force Investigator Jim England testified that the City of Decatur Police Department, which was instrumental in developing some of the drug cases against J.R.M., were involved in all the cases in which J.R.M. had worked as a confidential informant.


author: McMillan, judge. BASCHAB, Presiding Judge,

text:
    Barry Lee JENKINS v. STATE of Alabama.
    CR-05-2412.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.

      J. Tony Glenn, Hamilton, for appellant.
    Barry Lee Jenkins, pro se.
   McMillan, judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE and WELCH, JJ., concur. SHAW, J., concurs in the result. BASCHAB, P.J., dissents, with opinion.

BASCHAB, Presiding Judge,

dissenting.

In this case, the appellant argues that his counsel was not present during the hearing in which his community corrections sentence was revoked. The majority holds that this claim is not preserved because it was not presented to the circuit court and because it does not fall within one of the three exceptions to the general rules of preservation set forth in Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000). However, because this case involves the issue of whether the appellant was deprived of his right to be represented by counsel during his revocation hearing, I believe that we should address the merits of the appellant’s claim even though it is raised for the first time on appeal.

In addressing this issue, we must first determine whether the appellant had a right to counsel during the revocation proceeding. In this case, the appellant was sentenced to the Community Punishment and Corrections Program.

“A revocation hearing shall be conducted before the court prior to revocation of the community corrections sentence. The court shall apply the same due process safeguards as a probation revocation proceeding and may modify or revoke the community punishment sentence and impose the sentence that was suspended at the original hearing or any lesser sentence.... ”

§ 15-18-175(d)(3)b., Ala.Code 1975.

“ ‘[Tjhere is no automatic right to counsel in a probation revocation proceeding.’ Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000) (citing Spence v. State, 766 So.2d 206, 207 (Ala.Crim.App.1999)). Whether a probationer is entitled to counsel is determined on a case-by-case basis. See Law, 778 So.2d at 250; Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).”

Gibbons v. State, 882 So.2d 381, 382 (Ala.Crim.App.2003). Rule 27.6(b), Ala. R.Crim. P., provides, in pertinent part:

“Counsel will be appointed to represent an indigent probationer upon request:
“(1) If the probationer makes a col-orable claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
“(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

In this case, the Community Corrections and Punishment Authority alleged that, on May 17, 2006, the appellant left for unapproved leave; that the appellant was supposed to be on his job site; that the appellant left his transmitter at his job site; and that the appellant left his job site. During the revocation hearing, the following occurred:

“[THE COURT:] Where did he leave the transmitter?
“MS. OSBORN: The transmitter was left at his job site.[ ]
“THE COURT: Where?
“MS. OSBORN: Judge, I’d have to get the address. I don’t have that. He was at his father’s residence, and the transmitter was still at the job site. My understanding was that his father had sent him for some tools or something.
“THE COURT: Is that true?
“[THE APPELLANT]: No, sir.
“THE COURT: What isn’t true about it?
“[THE APPELLANT]: I didn’t leave my transmitter. I wasn’t at my daddy’s.
“THE COURT: So all she said is completely false?
“[THE APPELLANT]: Yes, sir. That’s what we went through before. I wasn’t at the house, you know. I mean, I wasn’t there. You know, I was found on my job site with my bracelet at work when all of it happened. You know, the Hackleburg law went back and put my monitor on the thing, and she told him to turn me loose, she’d come down there and they’d fix my bracelet in the morning.
“THE COURT: Wait. She told who to turn you loose?
“[THE APPELLANT]: The Hackle-burg cop, Larry Aaron.
“Did you not?
“THE COURT: Hackleburg cop?
“[THE APPELLANT]: Yeah. Larry Aaron, told him for me to be ordered to be released and come down there in the morning. They went to take the handcuffs off of me, and Kenny said to hold me right there and went to talking, and the next thing I know, I’m headed to jail.
“MS. OSBORN: His bracelet, Judge—
“THE COURT: Was the bracelet on you?
“[THE APPELLANT]: Yes.
“MS. OSBORN: He had put it on his leg, and when they were either getting him in or out of the car, it just happened to fall off.
“[THE APPELLANT]: Somebody told them to bring me down there and have it fixed that morning, to release me until all that happened. Then the next thing I know, I’m on the way to jail. He was taking the handcuffs off me, and then they said to hold me there — or Kenny did and got on the phone, and the next thing I know, I’m sitting there— I’m headed to jail.
“MS. OSBORN: The reason we had him held, Judge, it takes a few minutes for the computer to catch up with his whereabouts. It takes about five minutes. So when they notified us that his bracelet was off, that’s when we cut the computer on his case to find where he had gone to. And again, his bracelet did remain at the work site while he was at his father’s house. And then when the officer got there to pick him up — he went back to the job site — the bracelet just happened to fall off of his leg.
“[THE APPELLANT]: Well, I mean—
“THE COURT: It just happened to fall off?
“[THE APPELLANT]: Well, I mean, it should be latched right to start with. I don’t know if they made a mistake.
“THE COURT: Who’s Tyler Whitehead?
“[THE APPELLANT]: Tyler? Oh, that’s this guy from Hackleburg.
“THE COURT: Did you get in the truck with him?
“[THE APPELLANT]: No, sir.
“THE COURT: You didn’t get in the truck with him and jump out of the truck?
“[THE APPELLANT]: No, sir, I did not. And even Kenny come down to the thing and said that I didn’t get in that truck. They tried to say I tried to get in the truck, but I didn’t.
“THE COURT: But you didn’t?
“[THE APPELLANT]: No. He come down there and booked me in at the jail and asked me—
“THE COURT: Jenkins?
“[THE APPELLANT]: Yes, sir.”

(R. 2-5.)

In this case, it does not appear that the circuit court made an initial determination as to whether the appellant was entitled to have counsel appointed to represent him. Furthermore, based on the record before us, it appears that the appellant may have a colorable claim that he did not commit the alleged violations. Accordingly, we should remand this case to the circuit court with instructions that that court make specific, written findings regarding whether the appellant was entitled to have counsel appointed to represent him during the revocation hearing. For these reasons, I must respectfully dissent.

      . The Community Punishment and Corrections Authority also alleged that the appellant owed $34 in electronic monitoring fees, and the appellant admitted that he owed the electronic monitoring fee. However, the circuit court's written revocation order indicates that the circuit court revoked the community corrections sentence based only on the grounds that he had committed the offenses of unapproved leave and leaving the transmitter at his job site.

      . Based on the record before us, the identity of Ms. Osborn is not clear.


author: McMillan, judge.

text:
    Kelley J. ANDERSON v. STATE of Alabama.
    CR-05-0738.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.

      James Russell Pigott, Foley (withdrew 08/25/2006), for appellant.
    Kelley J. Anderson, pro se.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   McMillan, judge.

The appellant, Kelley J. Anderson, appeals from his conviction for robbery in the first degree, a violation of § 13A-8-41(b), Ala.Code 1975. He was sentenced to life imprisonment, ordered to pay a $2,500 fine, $100 to the victims compensation fund, and to reimburse the State $600 for attorney fees.

Anderson argues the trial court deprived him of his constitutional right to represent himself. He argues that he “not only [had] the ability to represent himself but made a voluntary and intelligent waiver of counsel.”

The record indicates that in the proceedings that led to his trial, Anderson unequivocally and repeatedly asserted his right to self-representation. Anderson first expressed his desire to proceed pro se in a motion filed on August 30, 2004. At the hearing on the motion, conducted on May 11, 2005, the following colloquy occurred between the trial court and Anderson, during which the trial court warned Anderson of the perils of going to trial without counsel:

“[The court]: All right.... Anderson, first of all, do you want to represent yourself or do you want a lawyer?
“[Anderson]: I would like to pursue that possibility with you, Your Honor. I would certainly like to discuss it.
“[The court]: Well, which one? Do you want to represent yourself or do you want a lawyer?
“[Anderson]: I would like to represent myself with standby counsel.
“[The court]: Why? Tell me why you think you’re better than someone that has been trained and experienced in the practice of law and in trial and in criminal practice, how you would be able to represent yourself better than they would be able to represent you.
“[Anderson]: It’s my hide that’s on the line here. I do have — Please don’t think I’m trying to be an attorney. I’m not. “[The court]: Well, you’re gonna be. If you represent yourself, you’re gonna be an attorney, and I want you to understand something, people that represent themselves, whether they’re on a criminal case or a civil case, when they sit down and they say they want to be an attorney ... then you’re gonna be expected to know the rules and know the procedures and if you don’t do it right, you’re right, it’s gonna be your hide and I ain’t gonna protect it. Don’t think that I’m here to be your lawyer. I’m not. I’m here to make sure that the proceedings proceed fairly and directly and efficiently and that you get a fair trial, not a perfect trial, not a trial that you want to go your way. It may or may not go your way.
“[Anderson]: I understand that, Your Honor.
“[The court]: But here’s the problem I have: Every time people want to represent themselves and then their case goes south on them, they want to blame me for not making them have a lawyer.
“[Anderson] That’s why I requested standby counsel.
“[The court]: No. Either you got a lawyer or you ain’t got a lawyer. I mean, that’s what a lawyer is for is to do the work for you. Now, if you want him to advise you and help you, I will give you one.
“[Anderson]: That’s what I’m asking for, for standby counsel to advise me to assist me.
“[The court]: Okay. It’s granted. You can represent yourself. You will have standby counsel of Mr. Bruijn.”

The record indicates Anderson was allowed the requested form of representation until September 2005, when the trial court, after granting Bruijn’s motion to withdraw as standby counsel, appointed counsel Wilson Myers to represent Anderson. On October 3, 2005, Myers filed a motion opposing Anderson’s evaluation for competency to stand trial. On October 5, 2005, Anderson withdrew his plea of not guilty by reason of insanity or mental defect and entered a plea of not guilty. Anderson, on October 18, 2005, filed another motion to proceed pro se, reaffirming his desire to represent himself. On October 19, 2005, Myers filed a motion to withdraw as Anderson’s counsel on grounds that Anderson had filed a motion seeking to represent himself. Myers asked the trial court to be allowed to assume the role as “consultant/advisor.” On October 31, 2005, the trial court conducted a hearing on the motion and the following colloquy occurred:

“[Myers]: ... [T]he only motion Mr. Anderson would like to argue at this point is his motion to proceed pro se. He would like to renew that motion very briefly. He would like to get up on the stand and testify as to why he would like to proceed pro se unless you’re willing to let him address the Court.
“[The court]: I’m willing to let him address the Court on that issue. “[Anderson]: Thank you, Your Honor.
“On 8-30-04, I originally filed a motion to proceed pro se. I know you’ve heard some of this but I’ll be brief. On 1-26-05, I filed again to proceed pro se. On 3-1-05, I filed again which was denied by you on 3-16-05, of course, without me ever being brought to court. On 5-11-05,1 was first brought to court and granted my pro se status. On 9-8-05, you took it away.
“Your Honor, I’m quoting — You said not to quote a case unless I have it. I happen to have it. Faretta — F-A-R-RE-T-A[sic] — v. California. It’s a United States Supreme Court case, 422 U.S. 806, and the Supreme Court of the United States of America says, ‘A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intellectually elects to do so.’
“I’m reaffirming my request for that. As you know, this case has had a bunch of different attorneys — there’s one page on the back I need to read — that this case has had a bunch of different attorneys involved.
“Everybody has run this case but the one person—
“[The court]: Is that what you want back?
“[Anderson]: I’m sorry.
“Everybody’s run this case, Your Honor, but the one person that’s entitled to run it by the United States Constitution and that’s me. I don’t care what Mr. Stan-koski did. I don’t care.
“[Prosecutor Green]: Stankoski?
“[Anderson]: Stankoski, Mr. Bruijn, Mr. Donald Doerr — I see in the courtroom— and Mr. Myers. They’ve all had a say in my trial but nobody will listen to me.
“You say I file too many motions. I didn’t realize there was a limit.
“[The court]: I didn’t mean that.
“[Anderson]: I really don’t think that you can honestly find one frivolous— well, there may be one or two. I’ll grant you that. But every one I have, I had a purpose behind.
“[The court]: I’ll accept that.
“[Anderson]: You know, I — maybe I say things that, perhaps, you’re not used to in a court of law, and I respect the bench more than you’ll ever know, but I’m entitled to represent myself, Your Honor. You’ve got everybody else running this shindig, but me and I’m the guy that you’re gonna send to prison, not Mr. Myers or the crowd in the back row, but me. And things aren’t being run the way I want them.
“And I can’t tell a skilled lawyer what to do because they don’t want to hear it. They say, well, we don’t want to listen to you, if you’re so smart, you’d have been a lawyer, but they’re not the ones going to prison ...
“[The court]: But the case will have to run under the Rules of Evidence, skilled attorney or otherwise.
“[Anderson]: That’s why if you leave— the only way I would like this deal, if you call it, is if Mr. Myers continues as my standby counsel.
“[The court]: The comment by the judge was you’re gonna follow the procedure; you’re gonna have to ask the questions right; if there’s an objection to the form of the question and it is properly taken, it is going to be sustained; we are going to treat you like a gentleman; we’re going to respect you; we’re going to give you every chance but you are going to play by the ground rules that everybody plays.
“And you don’t know those ground rules. You wouldn’t know those ground rules any more than any other lawyer will know those ground rules until he gets here and tries cases and you haven’t done that. That was what the judge said to Mr. Faretta.
“And I have some real concerns, Mr. Anderson, that you’re gonna ask me during the course of the trial if you are allowed to represent yourself — I have some real concerns that either directly or indirectly you’re gonna seek to try to change the ground rules as we go during the trial.
“And that would probably be from a lack of knowledge of how the court and Rules of Evidence work, but I really believe that that’s what you would try to do.
“[Anderson]: You have my word as a gentleman, Your Honor, that I will do the best I can and uphold the dignity of your court and if by some chance I can’t, then—
“[The court]: I’m not inclined to grant it at this point in time. I’m just not, given the history in this case, given the procedural history.
“I’m gonna give you some leeway during the course of the trial that if we can — if there are particular areas during the trial that you feel the need to actively participate as far as questioning, I may allow you to do that with certain witnesses but we’ll address that when that time comes.
“If there’s a particular witness that you feel it’s best for you to try to address directly—
“[Anderson]: So the motion to represent myself is, in fact, denied?
“[The court]: Yes.
“[Anderson]: Okay, I object.
“[The court]: Noted.”

On the day of trial, Anderson, before jury selection, made the following argument: •

“[Anderson]: I mean, I’m getting ready to face a trial for my life and you’ve appointed an attorney to represent me against my wishes. Mr. Myers may be a fine attorney. He’s not doing things the way that I wanted them done. There’s witnesses that should have been called that haven’t been called. There’s things that should have been done that haven’t been.
“[The court]: I’m sure we’ll hear about it at the Rule 32, Ala. R.Crim. P., proceeding, if we ever get to that point. “[Prosecutor]: And, Judge, the State absolutely agrees with Mr. Anderson that he has an absolute right to represent himself.
“[Anderson]: That’s all I’m asking, Your Honor.
“[The court]: I’m gonna let him be co-counsel and he can conduct some of the cross-examinations.
“[Anderson]: Your Honor, I’m just gonna decline that offer because I don’t want the appeals court to look and say, well, you ran 50 percent of it. It’s all or nothing.
“[The court]: Okay. It will be nothing then because I’m not gonna grant you all of it.”

In Tomlin v. State, 601 So.2d 124, 128 (Ala.1991), the Alabama Supreme Court stated:

“In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’ waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. At 2541. The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (other citations omitted).”

See also Coughlin v. State, 842 So.2d 30, 33-35 (Ala.Crim.App.2002); Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Crim.App.l986)(a waiver of counsel can be effectuated only when the defendant asserts a “clear and unequivocal” right to self-representation); Pratt v. State, 851 So.2d 142, 144 (Ala.Crim.App.2002)(“ ‘The constitutional “right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an accused ... ” ’ ”).

Rule 6.1(b), Ala. R.Crim. P., provides a framework to ensure that an accused’s waiver of counsel is knowing and intelligent:

“A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings. When a defendant waives the right to counsel, the court may appoint an attorney to advise the defendant during any stage of the proceedings. Such advisory counsel shall be given notice of all matters of which the defendant is notified.”

Certainly, the provisions of Rule 6.1(b) are mandatory, and, if the defendant properly preserves and presents an argument on. appeal that the trial court erred in its application of the mandatory provisions of Rule 6.1(b), he is entitled to relief. See, e.g., Ex parte King, 797 So.2d 1191 (Ala.2001).

Here, the record is clear as to Anderson’s waiver and request of self-representation. The record indicates that during numerous pretrial hearings, both the State and trial counsel acknowledged that Anderson had a constitutional right to self-representation. Although experience and skill in the legal system are not necessary to represent oneself, Anderson’s literacy and capability are demonstrated by several pro se motions and letters contained in the record. Moreover, he informed the trial court that he was not a novice to the legal system, having been previously convicted in state and federal courts. See Tomlin v. State, 601 So.2d at 129 (“This court looks to a totality of the circumstances involved in determining whether the defendant knowingly and intelligently waived his right to counsel.”).

It is apparent from a reading of the record that Anderson was seeking to represent himself and that, if necessary, he would accept the trial court’s order of standby counsel so that he could represent himself. There is no indication from the record that Anderson was attempting to use some type of “hybridized representation” of his own design. See, e.g., Moody v. State, 888 So.2d 532, 560 (Ala.Crim.App.2003); Baker v. State, 933 So.2d 406 (Ala.Crim.App.2005) (The trial court did not err in denying the defendant’s request for a “sit-in attorney.”).

Although the Constitution guarantees an accused the right to assistance of counsel in his defense, it also guarantees him the right to abandon the assistance of counsel and to present his own defense. Because the record supports Anderson’s argument that he made a knowing and intelligent decision to forgo counsel, the trial court abused its discretion in denying him his constitutional right of self-representation at the trial level. Therefore, we reverse Anderson’s convictions and remand the cause for a new trial at which Anderson should be permitted to represent himself.

Because we are reversing the convictions and remanding this cause for a new trial, we pretermit discussion of the remaining issues raised on appeal.

REVERSED AND REMANDED.

SHAW, WISE, and WELCH, JJ., concur; BASCHAB, P.J., recuses herself.


text:
    Rodney Earl HALL v. STATE of Alabama.
    CR-05-1388.
    Court of Criminal Appeals of Alabama.
    March 23, 2007.

      Thomas E. Drake II, Cullman, for appellant.
    Troy King, atty. gen., and Marc Bass, asst. atty. gen., for appellee.
   WELCH, Judge.

On March 13, 2006, the Cullman Circuit Court revoked Rodney Earl Hall’s probation in two cases based upon Hall’s subsequent arrest for unlawful distribution of a controlled substance. Hall appealed the revocation of his probation to this Court.

The record reveals that Hall pleaded guilty to a charge of unlawful distribution of a controlled substance in August 2003; the sentence of six years’ imprisonment was suspended and he was ordered to serve five years’ supervised probation. In March 2004, Hall pleaded guilty to a charge of unlawful possession of a controlled substance; that sentence of six years’ imprisonment was also suspended and he was ordered to serve three years’ supervised probation, to run concurrently to the five-year-probationary term imposed in 2003. On January 20, 2006, a warrant was issued for Hall’s arrest after the court received a delinquency report from his probation officer alleging that he had violated the terms and conditions of his probation by committing a new offense of unlawful distribution of a controlled substance. After a hearing, the trial court found probable cause to believe that Hall had violated the terms of his probation by committing a new offense and revoked Hall’s probation in both cases.

On appeal, Hall contends that the trial court’s revocation of his probation should be reversed because, he says, the evidence supporting the distribution charge was based solely on hearsay. Hall preserved this issue for appellate review when he objected to the revocation of his probation on the ground that the evidence in support of revocation was solely hearsay.

The State presented one witness at the revocation hearing. Randy Frost, an officer assigned to the Cullman County Narcotics Enforcement Team, testified that on or about July 29, 2005, he gave a confidential informant some money and requested that he go to an address he believed to be Hall’s residence. Frost had obtained the address from Hall’s driver’s license. The confidential informant and his vehicle were searched before the controlled buy. The confidential informant was wired with an audio-recording device during the transaction, and Officer Frost listened to the transaction from approximately a mile and a half away as it was taking place. After the informant left the residence, he met Frost at a predetermined location and gave Frost the substance he had purchased, which was determined to be cocaine. Frost testified that the informant identified Hall from photographs as the person who had sold him the cocaine. The audiotape of the transaction was not presented at the hearing. When asked at the hearing if he was basing his testimony completely on what the confidential informant told him, Frost responded that he was basing it “on what [he] heard on wiretap.” (R. 9.) Even though Frost listened to the transaction as it was taking place, no testimony was presented identifying any of the voices on the audiotape as Hall’s. The money used for the controlled buy was not recovered, and Hall was not arrested until the following January, six months after the controlled buy.

This Court stated in Goodgain v. State, 755 So.2d 591 (Ala.Crim.App.1999):

“It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation. See Clayton v. State, 669 So.2d 220, 222 (Ala.Cr.App.1995); Chasteen v. State, 652 So.2d 319, 320 (Ala.Cr.App.1994); and Mallette v. State, 572 So.2d 1316, 1317 (Ala.Cr.App.1990).”

755 So.2d at 592. See Clayton v. State, 669 So.2d 220, 222 (Ala.Crim.App. 1995)(“The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.”).

In Beckham v. State, 872 So.2d 208 (Ala.Crim.App.2003), a delinquency report was filed against probationer Beckham alleging that he had violated the terms of his probation because he had been charged with several new drug offenses involving cocaine and marijuana. At the probation-revocation hearing, Officer Patrick McKe-an testified that he had monitored, by means of an audio transmitter worn by a confidential informant, a drug transaction between the informant and two other individuals. The audiotape of the transaction was not offered at the hearing. Officer McKean testified that he could not identify Beckham’s voice. Thus, in order to effectuate Beckham’s arrest, McKean had relied on the informant’s assertion that Beckham had participated in the drug transaction and that he was one of the individuals whose voice was recorded on the audiotape. The Court concluded that “the only evidence that Beckham was involved in the sale of crack cocaine was Officer McKean’s hearsay testimony that the informant told him that Beckham was the seller.” Beckham v. State, 872 So.2d at 211. Thus, citing Goodgain, supra, and Clayton, supra, the Court held that “[b]e-cause hearsay testimony may not form the sole basis for the revocation of probation, the trial court erred when it revoked Beck-ham’s probation on this particular charge.” Beckham v. State, 872 So.2d at 211. Accord, Nash v. State, 931 So.2d 785 (Ala.Crim.App.2005)(hearsay testimony of police officer was insufficient to prove that probationer had committed a new drug offense).

Hall’s case is indistinguishable from Beckham. Here, Officer Frost monitored a drug transaction involving a confidential Informant and another individual by means of an audio transmitter concealed on the informant. The tape recording of the transaction was not admitted into evidence at the revocation hearing. Although Officer Frost listened to the drug transaction as it was occurring, he could not identify Hall as a participant, but he instead relied on the confidential informant’s identification of Hall as a participant to arrest Hall. Thus, as in Beckham and Nash, the only evidence indicating that Hall had violated the terms of his probation by committing a new drug offense was a police officer’s hearsay testimony.

Because, hearsay testimony cannot form the sole basis for revocation of probation, the trial court erred when it revoked Hall’s probation. Accordingly, the trial court’s order revoking Hall’s probation is reversed, and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

BASCHAJB, P.J., and McMILLAN, SHAW, and WISE, JJ., concur.

      . This error was held to be harmless because other grounds for revoking Beckham’s probation were proven. However, the case was remanded with directions to the circuit court to enter a new order specifying the evidence and the reasons relied on for revoking Beck-ham's probation. But see McCoo v. State, 921 So.2d 450 (Ala.2005)(holding that this court may determine from a review of the record whether the requirements of a statement of the evidence and the reasons for revoking probation have been presented).


author: PER CURIAM.

text:
    Donald David DILLBECK, Appellant, v. STATE of Florida, Appellee.
    No. SC05-1561.
    Supreme Court of Florida.
    May 10, 2007.
    Rehearing Denied Aug. 27, 2007.

      George W. Blow, III, Live Oak, FL, for Appellant.
    Bill McCollum, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

This case returns to us after remand with directions that the trial court support its earlier denial of Donald David Dill-beck’s motion to vacate judgment of conviction of first-degree murder and sentence of death with sufficient findings of fact and conclusions of law as required by Florida Rule of Criminal Procedure 3.850(d). See Dillbeck v. State, 882 So.2d 969 (Fla.2004) (Dillbeck II) The trial court properly complied with this direction. For the following reasons, we affirm the denial of relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are as follows:

Dillbeck was sentenced to life imprisonment for killing a policeman with the officer’s gun in 1979. While serving his sentence, he walked away from a public function he and other inmates were catering in Quincy, Florida. He walked to Tallahassee, bought a paring knife, and attempted to hijack a car and driver from a shopping mall parking lot on June 24, 1990. Faye Vann, who was seated in the car, resisted and Dillbeck stabbed her several times, killing her. Dillbeck attempted to flee in the car, crashed, and was arrested shortly thereafter and charged with first-degree murder, armed robbery, and armed burglary. He was convicted on all counts and sentenced to consecutive life terms on the robbery and burglary charges, and, consistent with the jury’s eight-to-four recommendation, death on the murder charge.

Dillbeck v. State, 643 So.2d 1027, 1028 (Fla.1994) (Dillbeck I). On direct appeal, this Court affirmed Dillbeck’s convictions and sentences. Dillbeck’s subsequent petition for writ of certiorari to the United States Supreme Court was denied on March 20, 1995. See Dillbeck v. Florida, 514 U.S. 1022, 115 S.Ct. 1371, 131 L.Ed.2d 226 (1995).

On April 23, 1997, Dillbeck filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. On September 3, 2002, after an evidentiary hearing, the trial court denied Dillbeck’s motion. Dillbeck appealed that decision. He also filed a petition for writ of habeas corpus. In his appeal, Dillbeck raised four ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as well as a per se ineffective assistance of counsel claim under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Nixon v. State, 857 So.2d 172 (Fla.2003), rev’d, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In his petition for writ of habeas corpus, Dillbeck argued that Florida’s capital sentencing statute is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We denied Dillbeck’s Ring and Cronic/Nixon claims. However, we remanded Dillbeck’s remaining ineffective assistance of counsel claims to the trial court with directions to make findings of fact and conclusions of law as required by Florida Rule of Criminal Procedure 3.850(d). See Dillbeck II, 882 So.2d at 970.

On July 22, 2005, the trial court submitted its findings of fact and conclusions of law to this Court. Dillbeek raises five issues in this appeal. His first claim is that the trial court erred in adopting virtually verbatim the proposed findings of fact and conclusions of law submitted by the State. His remaining four claims allege denial of his right to effective assistance of trial counsel. Specifically, Dillbeek alleges his trial counsel was ineffective because he (1) conceded the heinous, atrocious, or cruel (HAC) aggravating factor; (2) failed to conduct proper voir dire; (3) failed to move for a change of venue; and (4) introduced details of Dillbeck’s previous criminal activity to the jury during the penalty phase. We address these five claims in turn.

II. VIRTUAL VERBATIM ADOPTION OF THE STATE’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Dillbeck’s initial claim is that the trial court erred in adopting virtually verbatim the State’s proposed findings of fact and conclusions of law. Dillbeek concedes that on remand the trial judge directed both parties to submit proposed orders. Further, he does not claim that he was not served with a copy of the State’s proposed order or denied an opportunity to object. This claim is without merit. See Glock v. Moore, 776 So.2d 243, 248-49 (Fla.2001) (rejecting challenges to a trial court’s adoption of the State’s proposed postcon-viction order “where the defendant had notice of the request for proposed orders and an opportunity to submit his or her own proposal and/or objections”) (citing Patton v. State, 784 So.2d 380, 388-89 (Fla.2000); Groover v. State, 640 So.2d 1077, 1078-79 (Fla.1994)).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

As stated earlier, Dillbeek raises four ineffective assistance of counsel claims: (1) concession of the HAC aggravating circumstance; (2) failure to conduct proper voir dire; (3) failure to move for change of venue; and (4) introduction of details of Dillbeck’s criminal history to the jury during the penalty phase. We will address each of these claims after briefly stating the standard of review for such claims.

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As we stated in Wike v. State, 813 So.2d 12, 17 (Fla.2002), this standard requires a defendant to establish two prongs:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052); see also Rutherford v. State, 727 So.2d 216 (Fla.1998). Failure to establish either prong results in a denial of the claim. See Ferrell v. State, 918 So.2d 163, 170 (Fla.2005) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

. To establish deficient performance under Strickland, “the defendant must show' that counsel’s representation fell below an objective standard of reasonableness” based on “prevailing professional norms.” 466 U.S. at 688, 104 S.Ct. 2052; Wike, 818 So.2d at 17. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

To establish prejudice, “[t]he 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.” 466 U.S. at 694, 104 S.Ct. 2052; see also Wike, 813 So.2d at 17.

Finally, as to our standard of review, we defer to the trial court’s findings of fact regarding the credibility of witnesses and the weight assigned to the evidence but review the deficiency and prejudice prongs de novo. Windom v. State, 886 So.2d 915, 921 (Fla.2004) (citing Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999)).

A. Concession of the Heinous, Atrocious, or Cruel Aggravator

Dillbeck first claims that his trial counsel was ineffective for conceding the heinous, atrocious, or cruel (HAC) aggra-vator. On remand, the trial court made the following findings, which are supported by competent substantial evidence:

Dillbeck asserts his counsel was ineffective for conceding the HAC aggravator. Dillbeck claims that when his trial counsel described the murder as “brutal” this was conceding the heinous, atrocious and cruel aggravator. However, describing the murder as “brutal” is not conceding the heinous, atrocious and cruel aggravator when trial counsel is attempting to argue to the jury that even a terrible murder could result in a life sentence.
During jury selection, trial counsel referred to the crime as “brutal” and “terrible” to prospective jurors. During opening statements of [the] guilt phase, trial counsel, said that he was sure the State will do a very good job of convincing you that this was a “terrible, brutal crime.” After describing what Dill-beck’s testimony would be, trial counsel told the jury you will get to see very graphically what he did and it is a terrible, brutal thing. Trial counsel noted that “The State, I’m sure, will show you in graphic detail the brutality of this crime, You will see some terrible photographs. You will hear some terrible details, but I think you’ll soon see that the very brutality of this crime shows you what sort of state he was in. This wasn’t some kind of calculated, planned act. It is the kind of brutality you will see in a frenzy, someone that’s in a rage, someone who has simply lost control.”
In his initial closing of [the] guilt phase, trial counsel admitted this was “a terrible, terrible crime” and there are “not enough words to express the horrible nature of what he did.” Trial counsel, in support of his argument that the defendant was telling the truth in his trial testimony, coming “back to the brutality, the intensity of the assault” noted that “they have some terrible pictures here in evidence,” but the very intensity of the attack shows it was the kind of attack that would occur if the fellow was in a “frenzy, a rage.” Trial counsel observed: “he’s committed some terrible crimes here but clearly the State has not proven that it was a premeditated killing.”
During [the] penalty phase, the prosecutor, in his opening, urged the jury to find the HAC aggravator based on the pain involved and the length of time it took to die. Trial counsel, in his opening in [the] penalty phase, said: “my client is worthy of mercy” and “you should let him live.” Trial counsel told the jury that he was going to review Dillbeck’s life with them and they would hear a lot of details and “a lot of it is going to be bad.” Trial counsel acknowledged that “my client has done something terrible, terrible things during the course of his life.” Trial counsel noted that the Indiana crime was “chillingly similar to this murder.” Trial counsel acknowledged by the age of fifteen Dillbeck had “caused a great deal of pain and damage.” Trial counsel explained that Dillbeck suffers from Fetal Alcohol Syndrome which resulted in brain damage. Trial counsel also discussed child abuse during Dillbeck’s childhood and his father abandoning him. Trial counsel referred to Dillbeck using drugs including the fact that Dill-beck was taking speed when he stabbed the victim in Indiana. Trial counsel ended his opening with “you will see that he is deserving of mercy” and “he should be permitted to live.” In his closing at [the] penalty phase, trial counsel stated that life is the only fair resolution. Trial counsel repeatedly asked for mercy. Trial counsel, as part of his discussion against finding the HAC aggravator, told the jury that he had said all along that it was a brutal killing. Trial counsel argued that Dillbeck did not “decide this would be a good way to torture somebody.” Trial counsel also argued against the HAC aggravator by pointing out, based on the pathologist’s testimony, the victim had mercifully died quickly. He asked the jury to focus on the definition of HAC which required “some special intent to inflict a particularly tortuous sort of death.” Trial counsel stated that the mitigating evidence showed the reasons that Dillbeck caused this pain and wasted his life. He argued that the mitigation made these “senseless crimes” make sense and “the reason he has done these terrible things is because he is damaged and he’s mentally ill.” Trial counsel ended [the] penalty phase with the statement that he has committed some terrible crimes but he is entitled to mercy and then urged the jury to vote for life and let him live.

(Record citations omitted.)

At the postconviction evidentiary hearing, trial counsel denied that his description of the murder as brutal was a concession of the HAC aggravator. As summarized by the trial court in its order:

Trial counsel testified at the evidentia-ry hearing that while he admitted the killing was brutal, he did not concede the HAC aggravator. He argued that the murder was not heinous, atrocious and cruel. While he thought that the jury would find the HAC aggravator, he argued that the State had not proven it. He knew that the State would be seeking the HAC aggravator. He gave the prospective jurors a series of hypotheti-cals during jury selection because he thought that some jurors would, given the circumstances of the crime, could never vote for life, which he wished to know and excuse those jurors. He also wanted the jurors to understand even a “terrible,” “horrible” murder could still result in a life sentence. Trial counsel described the crime as brutal during voir dire because he thought it was best to confront difficult issues as soon as possible.

(Record citations omitted.)

In denying this claim, the postconviction trial court found that Dillbeck failed to prove both prongs of the Strickland standard. According to the trial court, “counsel did not concede to the HAC aggravator” by describing the crime as “brutal.” The court found that it was reasonable trial strategy to confront difficult issues rather than ignore them. Further, the court found no prejudice because the jury would have considered the murder to be heinous, atrocious, or cruel without counsel’s description of the murder as brutal. Also, the court agreed with the State’s contention that the jury would have recommended death regardless of the HAC aggravator based on the four remaining aggravators, which included a prior conviction for the murder of a law enforcement officer.

We agree with the trial court’s conclusion that Dillbeck has failed to establish either prong of the Strickland analysis in this claim. The presumption that counsel’s decision to refer to the murder as brutal might be considered sound trial strategy has clearly not been overcome. See Brown v. State, 846 So.2d 1114, 1125 (Fla.2003); Atwater v. State, 788 So.2d 223, 230 (Fla.2001). Dillbeck’s trial counsel did not render deficient performance in this regard. See Brown, 846 So.2d at 1125. Counsel reasonably sought to soften the impact of the evidence the State would introduce by conceding that the crime was brutal in order to prepare the jury for it. See id. (finding defense counsel’s reference to victim “gurgling” on his own blood was a reasonable trial tactic seeking to dilute some of the damaging testimony the jury would later hear). Moreover, given the four remaining aggravators (including murder of a law enforcement officer) and few minor mitigators, Dillbeck has not demonstrated prejudice from the alleged deficiency under the Strickland standard.

Therefore, we affirm the trial court’s denial of Dillbeck’s claim.

B. Failure to Conduct Proper Voir Dire

Dillbeck’s second ineffectiveness claim is based on trial counsel’s alleged failure to exercise a for-cause challenge against biased jurors. In order to prove deficient performance in this claim, Dill-beck must establish that trial counsel had a “reasonable basis to assert for-cause challenges” against these jurors. Reaves v. State, 826 So.2d 932, 939 (Fla.2002). Dillbeck claims two grounds for which counsel should have asserted for-cause challenges: (1) exposure to pretrial publicity; and (2) inclination to impose the death penalty.

The postconviction trial court made these findings on this issue, which are supported by competent, substantial evidence.

[At the postconviction evidentiary hearing,] [t]rial counsel, Mr. Murrell, testified that he approached jury selection with a genuine concern that “a lot’ of people would be inclined maybe automatically for death given the circumstances of the case.” Mr. Murrell testified that “it was pretty clear to me that Mr. Dillbeck was going to get convicted of first degree murder.” He went on to testify he hoped that “maybe we could get felony murder as opposed to premeditated murder ... [and] convince a jury to recommend a life sentence.” Mr. Murrell testified he approached jury selection with an eye toward getting rid of those you think will be unfavorable and to end up with a jury you have a chance with. Although he talks to his client about potential jurors, he believes the final decision is up to him. As trial counsel explained, jury selection is a give and take. “Your best hope is just to get rid of those you think will be unfavorable, and to typically end up with something you hope is at least neutral or that you have got a chance with.”

Dillbeck testified at the hearing that there were a “couple [of] people” he had a question about but they were excused. When asked whether he had questions about any other juror, Mr. Dillbeck testified that he did not believe he did.

This Court finds Mr. Murrell’s testimony regarding jury selection to be credible. The Court also finds that none of the jurors were biased due to their exposure to pre-trial publicity, and thus, this Court would not have granted the cause challenges had counsel made such challenges. The seven actual jurors were not subject to challenge for cause because, while most of them were exposed to pre-trial publicity, each assured the trial court that they could decide the case based solely on the evidence. None of the actual jurors knew of the prior capital felony conviction. Trial counsel was not ineffective for failing to challenge jurors who were not biased.

(Record citations omitted.) The trial court concluded that counsel’s strategy was reasonable and that there was no legal basis for challenging the jurors. Therefore, the court held that counsel’s performance was not deficient. The court also determined that there was no prejudice because each juror was carefully questioned, and no potential bias was found. We agree with the trial court that Dillbeck has demonstrated neither deficiency nor prejudice.

First, Dillbeck claims that counsel should have challenged most of the jurors based on exposure to pretrial publicity. More than mere exposure to pretrial publicity must be shown to establish such a claim. AlS the United States Supreme Court has stated:

It is not required ... that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 866 U.S. 717, 722-28, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Thus, the mere fact that most of Dillbeck’s jurors were exposed to pretrial publicity and may have formed preconceived opinions on the case is not enough to disqualify them. In this case, each juror was asked about exposure to pretrial publicity, and each juror assured the court that he or she could lay aside any impression or opinion and render a verdict based solely on the evidence presented in court.

Second, Dillbeck claims that counsel should have challenged some of the jurors who were inclined to vote for the death penalty. Dillbeck’s trial counsel adopted a reasonable trial strategy of avoiding a death sentence by attempting to seat jurors likely to recommend a life sentence. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (holding that counsel adopted a reasonable strategy not to object to a juror who he felt would be less likely to recommend the death penalty, even though the juror had been exposed to pretrial publicity and stated during voir dire that she could not be impartial). All of Dillbeck’s jurors stated that they would vote for life if the mitigating factors outweighed the aggravating factors. This claim is without merit.

C. Failure to Move for Change of Venue

Next, Dillbeck argues that his trial counsel rendered ineffective assistance by failing to move for a change of venue due to extensive and inflammatory pretrial publicity. On remand, the postconviction trial court found that Dillbeck “established neither deficient performance nor prejudice regarding this claim” and that “[tjrial counsel made a reasonable tactical decision not to file a motion for change of venue.” The postconviction trial court summarized the evidence presented as follows:

Trial counsel testified that he did not move for a change of venue. He thought about filing a motion but decided against it. He did not think the law supported a change of venue motion and that there was no merit to one, so he did not raise it. He did not move for change of venue after jury selection. Trial counsel testified that the newspapers’ reports that he saw were accurate and did not distort the facts. Trial counsel again explained that he was not concerned about the facts of the case because “all the facts that were in the paper were facts that were going to come out during the trial” and noted that this was not a case where the confession had been suppressed but published in the newspapers. He was not concerned about prospective jurors who knew the facts of the crime because that was “all going to come out” during the trial. He further testified that he was concerned because the crime occurred at a popular shopping area where anybody who lives in Tallahassee has been, which could cause the jurors to identify with the victim, but at the same time, Tallahassee is a “good place to try a case from the defense standpoint.” He was concerned about the murder occurring at Gayfers, a common shopping spot, but he felt he could deal with that. Trial counsel was also concerned about the place that the case would be transferred to because any other place, other than Gadsden County, in the panhandle you are going to have a “much more conservative jury, a jury much more likely to vote for death.” Trial counsel testified that “the odds are you are not going to wind up in a place that is better than Tallahassee.” Trial counsel testified that he did not think he had legally adequate grounds to request a change of venue. He was aware that if he had a lot of trouble selecting a jury, he could then request a change of venue after unsuccessfully attempting to empanel a jury.
Dillbeck testified that he made only one suggestion to trial counsel and that was asking about a change of venue. Dillbeck testified that he wanted a change of venue due to the publicity. The publicity portrayed him as a serial killer. They discussed the pros and cons of a change of venue. Dillbeck testified that trial counsel preferred to keep the trial in Tallahassee. Trial counsel told Dillbeck that Tallahassee was a “better place” for lenient jurors. Trial counsel told Dillbeck that they were more likely to get a more liberal jury pool in Leon County. Dillbeck testified that they talked about other places where the case could be tried if they filed for a change of venue and it was granted.
There is no record evidence that there was extensive and inflammatory pre-trial publicity. Dillbeck, although granted an evidentiary hearing on this claim, did not introduce any newspaper articles reporting the prior murder. Collateral counsel did not attach the newspaper articles that referred to Dillbeck’s prior conviction to his initial post-conviction motion nor his amended motion. Nor did he introduce any such articles at the evidentiary hearing. State v. Knight, 866 So.2d 1195, 1209 (Fla.2003) (explaining test for determining whether a change of venue should be granted based on pretrial publicity examines a number of circumstances including whether the publicity was made up of factual or inflammatory stories or favored the prosecution’s side of the story). Dillbeck did not supply the trial court with any of this information and thus did not sufficiently factually develop this claim at the evidentiary hearing. Meeks v. Moore, 216 F.3d 951, 964 (11th Cir.2000) (finding no evidentiary support for ineffectiveness for failing to file a change of venue claim where collateral counsel introduced four newspaper articles which were meager and mundane) ....
This Court finds Mr. Murrell’s testimony regarding change of venue to be credible. The Court also finds that Dill-beck’s jury was selected without undue difficulties and therefore, this Court would not have granted any motion for change of venue had one been made. Accordingly, counsel was not ineffective for failing to move for a change of venue.

(Record citations omitted.)

Based on these findings, which are supported by competent, substantial evidence, the postconviction trial court concluded that Dillbeck failed to establish either deficient performance or prejudice under Strickland. We agree. Although Dillbeck’s trial counsel was concerned about the pretrial publicity, on balance he believed it would be best to try the case in Tallahassee in order to obtain the most favorable jury. This was a reasonable tactical decision and, therefore, not deficient performance. Moreover, no prejudice resulted. “When applying the prejudice prong to a claim that defense counsel was ineffective for failing to move for a change of venue, the defendant must, at a minimum, ‘bring forth evidence demonstrating that the trial court would have, or at least should have, granted a motion for change of venue if [defense] counsel had presented such a motion to the court.’ ” Wike, 813 So.2d at 18 (alteration in original) (quoting Meeks v. Moore, 216 F.3d 951, 961 (11th Cir.2000); citing Provenzano v. Dugger, 561 So.2d 541, 545 (Fla.1990)). Dillbeck failed to demonstrate a legal basis for filing a motion for change of venue. Dill-beck produced no evidence of extensive pretrial publicity (newspaper articles, etc.) in support of this claim. Also, there were no undue difficulties in selecting an impartial jury because the jurors assured the court during voir dire that they could be impartial despite their extrinsic knowledge about the case. See Provenzano, 561 So.2d at 545. Therefore, any motion for change of venue would have been denied. Accordingly, we affirm the trial court’s denial of Dillbeck’s claim.

D. Introduction of Details of Defendant’s Criminal History to the Jury During the Penalty Phase

Finally, Dillbeck argues that his trial counsel was ineffective for introducing evidence of prior crimes and bad acts during the penalty phase which the State may not have been able to introduce under Florida law. On remand, the postconviction trial court made the following findings, which are supported by competent, substantial evidence:

Dillbeck testified at the evidentiary hearing that he did not consent to trial counsel admitting evidence relating to other crimes. Dillbeck admitted that none of the evidence relating to his past crimes was inaccurate. Dillbeck testified that he thought that it was unreasonable for trial counsel to introduce his past criminal conduct first in an attempt at a preemptive strike because that was the State’s job. Dillbeck opined that the State would not have been able to introduce some of the evidence because it was not admissible. He acknowledged that his prior arrest record was a matter of public record. Dillbeck described his prior criminal arrests that did not result in convictions. He noted that trial counsel discussed these arrests in the penalty phase.
Trial counsel testified that he thought that the crime in Indiana was admissible because it was the motive for the murder of the deputy sheriff which he was going to put in issue. Dillbeck was fleeing from the stabbing in Indiana when he shot the deputy. The State had already videotaped the stabbing victim prior to the trial to admit during the penalty phase. He thought it was “better for us to own up to it” and address it than to have it come in as a revelation introduced by the State. He thought this evidence was admissible because he was going to open the door to it by going into the question of why he shot the deputy, which would make the evidence that he was fleeing to Florida from an Indiana crime admissible. Also, trial counsel was attempting to present as mitigating evidence that Dillbeck had a good prison record and had behaved in prison and that he was not a threat to others so long as he was in prison which he knew the State would attempt to rebut. He explained that, by the defense presenting evidence that he was a good inmate, it opened the door to the State presenting prior incidents in prison. The State already had Dillbeck’s prison records. What had happened in prison was “not a secret.” He wanted to address those things before the State revealed them to undercut his argument that Dillbeck was a good prisoner. Trial counsel would not have admitted this information if he did not think that it was admissible by the State. He explained that by introducing mitigating evidence, he had to accept some “not so favorable” rebuttal evidence by the State. Trial counsel thought that because his mitigation was going to open the door to this rebuttal evidence by the State, it was better to reveal the damaging rebuttal evidence himself than to have the State do it.
This Court finds Mr. Murrell’s testimony to be credible. This Court finds that counsel’s decision to present mitigation, although it necessarily opened the door for the State to attempt to rebut that mitigation, was a reasonable trial strategy and thus counsel was not ineffective.

(Record citations omitted.)

We agree with the trial court that counsel made a reasonable, strategic decision to present this evidence. Counsel knew that introducing the mental mitigation and the model prisoner mitigation would open the door for the State to introduce evidence of a prior stabbing in Indiana, an escape attempt, and the stabbing of another inmate. Yet the only mitigation available was the mental mitigation and model prisoner mitigation, and counsel reasonably believed that the jury would be more likely to recommend death if the defense introduced no mitigation at all. Thus, despite its risk, we cannot say that trial counsel’s decision to introduce this evidence was “outside the broad range of reasonably competent performance under prevailing professional standards.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). It was reasonable for trial counsel himself to disclose the prior bad acts to soften or deflect the negative impact of the prejudicial evidence he knew the State would present. Accordingly, we affirm the post-conviction trial court’s conclusion that Dill-beck failed to show deficient performance by counsel for introducing details of his previous criminal activity to the jury during the penalty phase.

IV. CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of Dillbeck’s motion to vacate judgment of conviction of first-degree murder and sentence of death.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . We have jurisdiction, of the appeal pursuant to article V, section 3(b)(1), Florida Constitution.

      . On direct appeal, Dillbeck argued that the trial court erred in addressing (1) juror qualifications; (2) evidence of specific intent; (3) requiring Dillbeck to submit to a psychological exam by the State’s expert; (4) flight instruction; (5) testimony of the State’s mental health expert; (6) instruction on heinous, atrocious, or cruel; (7) the finding of heinous, atrocious, or cruel; (8) escape instruction; (9) proportionality; and (10) the allocation of the burden of proof in the penalty phase. Id. at 1028 n. 3.

      . In his motion for postconviction relief, Dill-beck claimed that he was denied effective assistance of counsel under Strickland because his trial attorney (1) conceded the heinous, atrocious, or cruel (HAC) aggravating factor; (2) failed to conduct proper voir dire; (3) failed to move for a change of venue; and (4) introduced details of Dillbeck's previous criminal activity to the jury during the penalty phase.

      . The four remaining aggravating factors were: (1) Dillbeck committed the murder while under a sentence of imprisonment; (2) Dillbeck had been previously convicted of another capital felony; (3) the murder was committed during the course of a robbery and burglary; and (4) the murder was committed to avoid arrest or effect escape.

       Two of the complained of jurors were alternates only who did not participate in the jury’s verdict. Dillbeck cannot show prejudice based on alternate jurors that never served.