James Largin v. State of Alabama ( 2022 )

Rel: December 16, 2022
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-20-0228
_________________________
James Largin
v.
State of Alabama
Appeal from Tuscaloosa Circuit Court
(CC-07-2129.60)
MINOR, Judge.
In this appeal from the denial of a Rule 32, Ala. R. Crim. P.,
petition, we consider whether James Largin had ineffective assistance of
trial counsel in the proceedings that led to his capital-murder convictions
and death sentences for killing his parents. Proving "the truism that,
regardless of the mitigation strategy that capital defense lawyers choose,
they are often 'damned if they do, and damned if they don't' when their
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clients later assert claims of ineffective assistance of counsel during
collateral review," Morton v. Secretary, Florida Department of
Corrections, 684 F.3d 1157, 1161 (11th Cir. 2012), this appeal requires
us to consider Largin's claim that his trial counsel were ineffective during
the penalty phase for introducing evidence of Largin's personality
disorder—evidence that the sentencing court found mitigating. Although
this Court has often considered claims that trial counsel was ineffective
for not introducing evidence of a defendant's personality disorder, we
have never ruled that counsel was ineffective for introducing such
evidence, and, under the circumstances of this case, we reject Largin's
request that we do so. We also reject Largin's other ineffective-
assistance-of-counsel claims, and we affirm the judgment of the
Tuscaloosa Circuit Court denying Largin's Rule 32 petition.
FACTS AND PROCEDURAL HISTORY
On direct appeal, this Court summarized the relevant facts from
Largin's trial:
"Peggy and Jimmy Largin were at home on the night of
March 15, 2007, when they were shot multiple times with a
.22 caliber rifle and their bodies were thrown down the stairs
leading to the cellar in their home. Autopsy results showed
that both victims died as the result of close-range gunshot
wounds to the head.
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"Sheri Largin Lake, Largin's sister and Jimmy and
Peggy's daughter, testified that she went to her parents' house
sometime after 9:00 p.m. on March 15, 2007, and her parents
and her brother were there. Largin had a history of drug and
alcohol abuse, and he had recently been told to leave a
residential treatment center for failing to follow the rules.
Jimmy had picked Largin up from the treatment center and
had brought him to the Largin residence. Largin had been
living with his parents for approximately one week. Sheri
testified that her mother had not wanted Largin to stay in the
house because he previously had stolen money and property
from them.
"Sheri was unable to make telephone contact with her
parents on March 16, 2007, which was unusual. She drove to
their house that evening and found the house dark and the
front door locked, which was also unusual. Sheri entered the
house, called out to her parents, and walked to her mother's
room, where she saw blood on the floor. She left the house and
called emergency 911. The Largins had been in their
bedrooms when they were shot with a .22 caliber rifle, and
their bodies had been dragged through the house and thrown
down the basement stairs. A mop with blood on the handle
was found in the kitchen sink. Forensic analysis revealed that
DNA on the mop handle was consistent with a mixture of
Peggy's DNA and Largin's DNA. Officers observed swirl
marks on the kitchen floor that indicated that someone had
attempted to clean something up with a mop. Largin's
fingerprints were found on several containers of cleaning
products recovered near the kitchen sink. Sheri testified that
her brother was not at the house when she arrived that night
and that her deceased sister's Trans Am automobile, which
was kept on the Largins' property, was missing. Several items
had been stolen from the house, including credit cards
belonging to Jimmy and Peggy, a rifle, and Peggy's floral
makeup bag in which she kept her set of keys and a
substantial amount of cash.
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"Testimony further established that Largin drove the
Trans Am to a friend's house between midnight and 1:00 a.m.
on the night of the murders. Largin purchased crack cocaine
several times during the next 24 hours and smoked it with
some of his acquaintances. Those acquaintances testified that
Largin drove the Trans Am on several outings during that
time, that he was in possession of the floral pouch that was
identified as belonging to Peggy, and that he seemed to have
a large amount of money. When Largin ran out of cash to
purchase drugs, he began using his parents' credit cards.
Several purchases were verified by receipts and surveillance
videos. Largin purchased some items from a Walmart
discount store and traded them for more drugs.
"Law-enforcement officers were notified of the issuance
of a 'BOLO'—be on the lookout—for the Trans Am. Officers
located the car parked at an apartment complex. Soon after
the car was located, Largin and a companion came out of one
of the apartments and walked toward the car. They had
intended to travel to another location to purchase more crack
cocaine. Officers took Largin into custody.
"Investigator Simon Miller had been a friend of Jimmy's
for several years, and both he and Jimmy were members of
the Church of Jesus Christ of Latter Day Saints. He also knew
Peggy and had been introduced to Largin and Sheri. Miller
had chatted with Largin on more than one occasion before the
murders. Miller spoke with Largin at the police department
after he was arrested, and Largin told Miller, 'It wasn't
murder ... not in a cold-blooded sense.' (C. 836.) Largin further
stated that he started to clean up the crime scene but then
decided not to, and that he did not 'try to hide it.' (C. 838.)
"Several inmates with whom Largin had been
incarcerated testified that they heard Largin admit that he
had killed his parents. Largin also said that his parents were
where they were supposed to be and that, if it were necessary,
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he would do it again."
Largin v. State, 233 So. 3d 374, 388-89 (Ala. Crim. App. 2015). The jury
convicted Largin of two counts of capital murder for killing his parents.
See § 13A-5-40(a)(2), Ala. Code 1975 (murder made capital because it was
committed during a robbery), and § 13A-5-40(a)(10), Ala. Code 1975
(murder of multiple victims made capital because it was committed under
one scheme or course of conduct).
At the penalty phase, the defense offered evidence about (1)
Largin's work history, (2) his upbringing and family life, (3) his problems
with substance abuse and depression, and (4) his alleged personality
disorder. (Trial R. 2215-2434.)1 The defense also cited his lack of a
significant criminal history. (Trial R. 2499.)
Largin presented testimony from his uncle, Mike Largin; Jonathan
Friday, a former boyfriend of Largin's sister, Sheri; Largin's great aunt,
Christine Largin; and Largin's cousin, Teresa O'Rourke. Their testimony
1"Trial C." refers to the clerk's record in Largin's direct appeal;
"Trial R." refers to the reporter's transcript in the direct appeal. See Rule
28(g), Ala. R. App. P. See also Hull v. State, 607 So. 2d 369, 371 n.1 (Ala.
Crim. App. 1992) (noting that this Court may take judicial notice of its
own records).
5
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suggested that Largin's household during his childhood was filled with
arguing, fighting, and verbal abuse. (Trial R. 2215-51 2271-94, 2351-52.)
Largin also presented testimony from Dr. Karen Salekin, a clinical
psychologist and mitigation specialist. Salekin testified that she
interviewed Largin 4 times and interviewed 19 individuals, including
family members, former employers, and family friends. (Trial R. 2301.)
Dr. Salekin was unable to speak with Largin's sister, Sheri, or with
Largin's ex-wife, Dixie. (Trial R. 2305.) Other individuals refused to talk
to her. (Trial R. 2306-07.)
Dr. Salekin also reviewed "a large volume of medical records
pertaining to [Largin's] mental health history, his hospitalizations at
North Harbor, Indian River[s] [Community] Mental Health Center, the
Crisis Stabilization Unit, Bryce Hospital, and Serenity Care." (Trial R.
2308.) Dr. Salekin testified that, beginning in 2006, Largin was
hospitalized several times for attempting suicide or having suicidal
thoughts. (Trial R. 2309.) On cross-examination, she testified that some
of Largin's suicide attempts or "gestures" could have been "manipulation,
a way to attention, … a way to get into the hospital to get help." (Trial R.
2353.) She testified that Largin's ingestion of antifreeze and then telling
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others about it was likely not an instance in which he "intended to kill
himself." (Trial R. 2357.) But she testified about one suicide attempt:
"It would indicate that he went to the degree … that he could
have lost his life at that point in time. Could have. But as was
mentioned before, he also did these things in front of people.
And that—it's a game that is dangerous to play. When people
go to that degree to try to kill themselves and weigh the
likelihood of someone saving them and being taken to the
hospital in the appropriate time, it's getting to the point
where they are making a dangerous and bad decision. …
"… [A]s I mentioned yesterday, I think they are
manipulative gestures. But the judgment in making that—
and I think the [suicide attempt], the one before with the
antifreeze, really demonstrates his inability to make good
decisions, his potentially impulsive behaviors."
(Trial R. 2410-11.)
Dr. Salekin testified that the records showed that Largin had
"clinical diagnoses" of "[m]ajor depression," "impulse control disorder,"
and "polysubstance abuse disorder." (Trial R. 2312.) Dr. Salekin testified
that Largin did not have an official diagnosis of a personality disorder,
but she said that his records referenced traits she described as "Cluster
B" traits—"behaviors that tend to get people in trouble interpersonally
because they are either—they can be insulting people, they can be very
clingy and needy people, they can be very arrogant people"—and "Cluster
C" traits. (Trial R. 2312-13.) Dr. Salekin said that individuals with
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"Cluster B personality disorders" generally have "wild" emotions, are
unpredictable, and "can be … violent toward themselves" or others. (Trial
R. 2313-14.) She testified that individuals with Cluster B characteristics
are generally not treatable with medication, and care usually focuses on
behavior management. (Trial R. 2313-14.)
Dr. Salekin testified that "there did not seem to be a whole lot of
successful treatment for Mr. Largin." (Trial R. 2315.) Salekin testified
that, in her opinion, Largin had a "significant" mental illness. (Trial R.
2318.) She testified that he had "a characterological problem" and that
he suffered from "narcissistic personality disorder" ("NPD"). (Trial R.
2319.) She testified that a person with NPD "comes across as being very
arrogant, grandiose in their thinking, [and] tend to have a pretty high
sense of entitlement meaning they want other people to do things for
them." (Trial R. 2319.) Dr. Salekin cited the Diagnostic and Statistical
Manual of Mental Disorders as a basis for testimony. (Trial R. 2321.)
Dr. Salekin stated that someone does not simply get over a
personality disorder and that Largin could not just "get over" it. But, she
testified, "long-term individual psychotherapy" could be beneficial. (Trial
R. 2332-33.) She described Largin has having "more than just a bad
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personality. His particular group of characteristics are not pleasant.
People usually don't want to be around folks with this personality. They
find them off-putting, entitled, demanding, those kind of things." (Trial
R. 2334-35.)
Dr. Salekin testified that, in her opinion, Largin had a "severe"
mental disorder that had "impacted his ability to connect with people for
probably for most of his life." (Trial R. 2337-38.) In her opinion, NPD
caused him to have "trouble controlling his impulses." (Trial R. 2340.)
Dr. Salekin testified about "impulsive behavior":
"It's just a way of describing someone who doesn't put a lot of
thought into what they do. They just—they do things without
thinking. They don't weigh the consequences of their
behaviors very well and come out the other end needing to
deal with what has happened and may have the hindsight of,
oh, that was a bad idea, but they don't have the foresight to
actually prevent themselves in the same way that people with
good judgment [have]. We all make mistakes. But in these
cases they are more apt to make bad judgments with little
insight prior to making their decisions."
(Trial R. 2411-12.) Dr. Salekin testified that, in her opinion, Largin did
not "have the capacity to connect with people. … He's not really going to
understand what it might feel to other people having lost a child or
experiencing an illness or something like that. … [P]eople with this
disorder don't have the real ability to feel for other people." (Trial R.
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2412.)
Dr. Salekin testified that she was not "trying to make excuses for
what [Largin] did." (Trial R. 2341.) She stated:
"I'm just trying to explain as best I can who Mr. Largin is and
how he got to be the way he is. Mr. Largin is in a situation
that's unusual and we're all trying, I think, to grasp what it
could have been that got him into the situation. So that's all
I'm trying to do and put it all together so that it makes some
sense out of a very nonsensical and horrible situation."
(Trial R. 2341-42.)
When questioned about specific statutory mitigating
circumstances, Dr. Salekin testified that “in comparison to" other cases
she had worked on, Largin's three domestic-violence charges did not
present "a significant history of prior criminal activity," but she also did
"not want to minimize the fact that he has … three domestic violence
charges." (Trial R. 2337.) On cross-examination, the State also asked Dr.
Salekin about statements from Largin in which he said that, on his
honeymoon, "he assaulted a man after seeing his wife kissing another
man." (Trial R. 2376.)
The State also asked Dr. Salekin about details of Largin's medical
records. She acknowledged that the records suggested that Largin had
used cocaine and that he had attempted suicide by trying to overdose
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using Xanax, cocaine, and alcohol, and by ingesting antifreeze. (Trial R.
2355.) Dr. Salekin testified that Largin's chart from North Harbor had
" 'manipulative' all over it." (Trial R. 2361.) The records stated that
Largin acted hostile toward the staff and misrepresented what they told
him. (Trial R. 2363.)
The records included statements that Largin gave a controlled
substance (Klonopin) to another patient, that he had his wife sneak in
cigarettes and marijuana, and that he had "cheeked medication ….
keep[ing] [it] in [his] cheek, … pretend[ing] [he] swallowed it, and [using]
it for some other purpose." (Trial R. 2361-62, 2366). The records included
statements from Largin that he regretted "putting a cat in a freezer" and
that he regretted "in 1990 beating a man unconscious and trying to throw
him off a balcony." (Trial R. 2375.) The records stated that Largin did
not take responsibility for his actions.
The State questioned Dr. Salekin about statements in the records
that Largin had a good relationship with his parents and a good
childhood. (Trial R. 2359, 2394). Dr. Salekin did not dispute that the
records suggested that Largin's allegations of abuse or of a turbulent
childhood came only after Largin had applied for disability benefits.
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(Trial R. 2360.) Dr. Salekin also testified that, while at North Harbor,
"[t]he implication from the records was [Largin] was going to try to use
his current hospitalization and the record that he had developed … to
then apply for disability status." (Trial R. 2358.) She testified, however,
that it was not "unusual" for someone like Largin to at first refuse "to
open up" about his childhood. (Trial R. 2408.)
Dr. Salekin testified that she did not think "that poor parenting
caused Mr. Largin to do anything." (Trial R. 2390.) She testified that in
her opinion Largin was manipulative. (Trial R. 2396.) Dr. Salekin stated
that she based her "diagnosis of Mr. Largin … primarily … on records
because of [her] concern" that he could be manipulative. (Trial R. 2396.)
She explained that being manipulative was "part and parcel of what he
has, the disorder." (Trial R. 2406.)
Dr. Salekin summed up her opinion of Largin:
"So in terms of the uniqueness of Mr. Largin and his
decisions, he in my opinion has this particular disorder to
such a degree that his impairment is different. I can't tell you
what part of his history impacted it and I can't tell you if there
was something in his brain. I can tell you that in my opinion
he became the person he did and did something very unusual,
as maybe we can call it unique. He did something unusual
that most people would not.
"But again people with disorders—many people with
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disorders do things that we don't understand. And this—I
don't think anybody can really come up to a good explanation
as to why it happened."
(Trial R. 2430.)
At the end of the penalty phase, the jury recommended, by an 11-1
vote, a death sentence for each count, and the circuit court followed the
jury's recommendation and sentenced Largin to death.
The circuit court found that two aggravating circumstances existed:
that Largin committed the murders during the commission of a robbery,
§ 13A-5-49(4), Ala. Code 1975, and that he murdered both his parents by
one act or under one scheme or course of conduct, § 13A-5-49(9), Ala. Code
1975. The circuit court found that one statutory mitigating circumstance
existed: that Largin did not have a significant criminal history, § 13A-5-
51(1), Ala. Code 1975. The circuit court found that several nonstatutory
mitigating circumstances existed: that Largin suffered from NPD; that
Largin's turbulent family history affected his upbringing; that Largin
suffered from alcohol- and substance-abuse problems; that Largin's
education, military service, and work history were evidence of his good
character; and that Largin exhibited good behavior while he was
incarcerated. The circuit court found that no other nonstatutory
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mitigating circumstances, "including remorse," existed. (Supp. Trial C.
35-38.)
This Court affirmed Largin's convictions and sentences. Largin v.
State, 233 So. 3d 374 (Ala. Crim. App. 2015). The Alabama Supreme
Court denied certiorari review on April 21, 2017, Ex parte Largin (No.
1151272), and on that same date this Court issued a certificate of
judgment, making Largin's convictions and sentences final. The United
States Supreme Court denied certiorari on November 27, 2017. Largin
v. Alabama (No. 17-5678).
In April 2018, Largin timely filed a postconviction petition under
Rule 32, Ala. R. Crim. P., challenging his convictions and sentence.2 (C.
61.) Largin alleged three categories of claims: (1) claims alleging that his
counsel was ineffective; (2) claims alleging that the State withheld
exculpatory and impeachment evidence; and (3) a claim alleging that he
2Largin paid the filing fee. (C. 60.) See Rule 32.6(a), Ala. R. Crim.
P. ("A proceeding under this rule is commenced by filing a petition,
verified by the petitioner or the petitioner's attorney, with the clerk of the
court. … [The petition] shall also be accompanied by the filing fee
prescribed by law or rule in civil cases in the circuit court unless the
petitioner applies for and is given leave to prosecute the petition in forma
pauperis.").
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has a long-term mental illness that, he alleged, renders him
"categorically" ineligible for the death penalty. 3
After the State responded (C. 204), the Tuscaloosa Circuit Court
scheduled an evidentiary hearing on two of Largin's claims: (1) Claim
I.A.1., in which Largin alleged that his counsel were ineffective for not
having "a unified theory of the guilt and penalty phases" of his defense,
and (2) Claim I.A.5., in which Largin alleged that his counsel should not
have called "Dr. Karen Salekin, a psychologist and mitigation expert," to
testify during the penalty phase. (C. 69, 81, 278; R. 7-9.)
At the evidentiary hearing, Dr. Salekin testified that Largin's
counsel retained her in the case as a mitigation expert. In that role, Dr.
Salekin learned about Largin's family, personal, medical, psychiatric,
and educational histories. (R. 11.) She reviewed records that counsel
provided her, including records from Serenity House and DCH Regional
3Largin does not challenge the circuit court's dismissal of his claims
alleging that the State withheld evidence or his claim challenging the
constitutionality of his death sentence. Thus, those claims are deemed
abandoned and are not properly before this Court. See, e.g., Jones v.
State, 104 So. 3d 296, 297 (Ala. Crim. App. 2012) ("Other claims raised
in [the] petition were not pursued on appeal and, therefore, those claims
are deemed abandoned. See, e.g., Brownlee v. State, 666 So. 2d 91, 93
(Ala. Crim. App. 1995) ('We will not review issues not listed and argued
in brief.').").
15
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Medical Center and notes from Dr. Omar Mohabbat, Largin's outpatient
psychiatrist at Indian Rivers Community Mental Health Center. (Trial
C. 204; R. 15.) Dr. Salekin noted that, after reviewing the records, she
talked with trial counsel. She said that her "primary concern was
personality characteristics, all of which for Mr. Largin were negative.
Things like arrogant, manipulative, lacking empathy for others." (R. 16-
17.) She "ultimately concluded [Largin] has narcissistic personality
disorder, which is an elevated level of problems that lead to impairment
in functioning …. in a manner typical or acceptable in our community, in
our society." (R. 19-20.)
Dr. Salekin testified that she considered "evidence of a personality
disorder or characterological disorder" as "generally aggravating." (R.
20.) She also testified that she would not advise a defense team to
"proactively present evidence that their client suffers from a personality
disorder." (R. 20-21.) She testified that ordinarily she would try "to
contextualize a personality disorder within a defendant's life or his or her
history" but that she was unable to do so in Largin's case because she had
talked with "very few people that could provide any helpful background
in terms of his upbringing and the things he experienced." (R. 22.) Dr.
16
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Salekin testified that she "warned" trial counsel early in the case that
she was encountering "roadblocks" in getting a "full picture" of Largin's
childhood home environment. (R. 23-25.) She stated that her testimony
in the penalty phase about Largin's narcissistic personality disorder
damaged his case and that she thought that Largin's counsel was "wrong"
for calling her to testify. (R. 27-28.)
Dr. Salekin identified other negative information in Largin's
medical records that she had concerns about the jury learning such as
Largin's putting a cat in a freezer, beating a man unconscious in 1990
and trying to throw him off a balcony, giving a controlled substance to
another patient at North Harbor, and being released from Serenity Care
for abusing medication. (R. 30-32.) The State questioned Dr. Salekin
during the penalty phase about each of those instances, as well as other
negative information in Largin's records.
Dr. Salekin testified that she warned trial counsel before trial that
she thought her "testimony would do more harm than good." (R. 34-35.)
On cross-examination, however, Dr. Salekin acknowledged that no
concern about testifying appeared in her notes about two months before
Largin's trial or in an email from her to trial counsel about a month before
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trial. (R. 48-50.)
Dr. Salekin acknowledged at the Rule 32 hearing that, although
narcissistic personality disorder is not curable, Largin could benefit from
therapy. (R. 33, 47.) She also acknowledged that she spoke with "several
individuals" about Peggy and Jimmy Largin. (R. 37-38.) She recalled
speaking with Largin's cousin, Teresa O'Rourke, about her history inside
the Largin home and "incidents of emotional, physical, and sexual abuse."
(R. 38.) Dr. Salekin also acknowledged that defense counsel had
presented testimony during the penalty phase about Largin's turbulent
home environment during his childhood. (R. 38-45.)
On questioning from the Rule 32 court, Dr. Salekin acknowledged
that the sentencing court found that Largin's NPD was a nonstatutory
mitigating circumstance, but she stated that she disagreed with that
finding. (R. 54.)
Leon Storie testified he and cocounsel James Smith represented
Largin at trial and that Smith served as lead counsel. 4 (R. 58-59.) For
strategic decisions, Storie and Smith would "consult with each other and
kind of bounce each other's ideas back and forth, pros and cons.
4Smith died before the Rule 32 hearing. (R. 89.)
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Ultimately the final decision was [Smith's] as lead counsel." (R. 59.)
Storie testified that Largin's case was his "first official appointment on a
capital case." (R. 68.) Storie testified that he thought Smith "had handled
about five capital cases in [that] circuit" before representing Largin. (R.
69.) Storie stated that the "nature of the case made it difficult" because
there was strong evidence of guilt including "a statement, a confession,
…. [and] video of some transactions that were made with [Largin's]
parents' money, credit cards, whatever." (R. 59.) He noted that, after the
circuit court denied the motion to suppress Largin's statement, counsel
"worked out a plea arrangement" for Largin to "plead guilty and …
receive a sentence of life without" the possibility of parole. (R. 60.) But
because Largin "was not comfortable with admitting to the facts," the
deal fell apart. 5 (R. 60-61.) Storie testified that, after Largin refused the
5On direct appeal, Largin argued that the trial court erred when it
refused to accept his negotiated best-interest guilty plea. This Court
noted:
"The State set out the terms of the plea agreement it had
offered, and one of the terms was that Largin actually plead
guilty to capital murder. The State made it abundantly clear
that it would not agree to a best-interest plea. Largin then
repeatedly stated [to the trial court] that he was unwilling to
concede his guilt or to plead guilty to the crime with which he
had been charged."
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plea deal, counsel thought that, for a trial strategy, their options were to
"rely on basic reasonable doubt" or "offer an alternative scenario" that
someone else committed the murders. (R. 61, 84.) He testified that "we
ultimately went with offering an alternative scenario." (R. 61.) Storie
noted that he "felt like once we lost on the motion to suppress, the penalty
phase was going to become very important." (R. 61.) He also testified that
counsel had "discussions about … [what] could be perceived as
inconsistent" theories in the guilt phase and penalty phase. (R. 84.)
Storie testified that they retained Dr. Salekin and, for mitigation,
planned to present a theory that "Largin's father was an abusive man
and had abused all the kids in the house and, because of this, had
basically created an environment where they were afraid of him, they
disliked him, and that … [Largin] didn't really have much of a shot, given
that environment." (R. 62.) Storie said that he and Smith "met with Dr.
Salekin several times" and that he reviewed notes from Al Kofman, who
"was the investigator" who "had taken notes of interviews he had done
Largin, 233 So. 3d at 392. This Court rejected Largin's argument:
"Largin was unwilling to plead guilty under the terms offered by the
State, and he cannot now argue that the trial court erred in refusing to
accept his plea." Id.20
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with various folks who could offer possible mitigation." (R. 62-63.)
He testified that "[a]t some point [Dr. Salekin] became concerned
about her testimony. She was afraid that her testimony had the potential
to backfire." (R. 64.) Storie testified that Dr. Salekin "never said I won't
testify" but that he thought "she expressed concerns about whether she
should testify." (R. 65.) Storie testified that he "took [her concerns]
seriously." (R. 67.) He stated that "[t]he fact that there [were] parents
involved was always an important factor because we thought a
reasonable juror would ask why would a person kill their parents." (R.
82.) He noted that Largin's case was not "your typical just killing
somebody because of a drug deal or whatever." (R. 82.) Storie testified
that Smith decided to present Dr. Salekin's testimony with "the
knowledge that it could backfire" but thought "that there was a
possibility that it could be helpful." (R. 86.) Storie testified that Smith
"articulated that he felt that [Dr. Salekin] would offer something that
would explain the behavior that the jury had already found had taken
place." (R. 87.)
After the evidentiary hearing, the circuit court denied the petition.
(C. 605.) The circuit court later denied Largin's motion for
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reconsideration, and Largin timely appealed. (C. 630, 645-46.)
STANDARD OF REVIEW
" '[Largin] has the burden of pleading and proving his
claims. As Rule 32.3, Ala. R. Crim. P., provides:
" ' "The petitioner shall have the burden of pleading
and proving by a preponderance of the evidence
the facts necessary to entitle the petitioner to
relief. The state shall have the burden of pleading
any ground of preclusion, but once a ground of
preclusion has been pleaded, the petitioner shall
have the burden of disproving its existence by a
preponderance of the evidence."
" ' "The standard of review this Court uses in evaluating
the rulings made by the trial court [in a postconviction
proceeding] is whether the trial court abused its discretion."
Hunt v. State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005).
However, "when the facts are undisputed and an appellate
court is presented with pure questions of law, [our] review in
a Rule 32 proceeding is de novo." Ex parte White, 792 So. 2d
1097, 1098 (Ala. 2001). "[W]e may affirm a circuit court's
ruling on a postconviction petition if it is correct for any
reason." Smith v. State, [122] So. 3d [224], [227] (Ala. Crim.
App. 2011).
" 'As stated above, [some] of the claims raised by [Largin]
were summarily dismissed based on defects in the pleadings
and the application of the procedural bars in Rule 32.2, Ala.
R. Crim. P. When discussing the pleading requirements for
postconviction petitions, we have stated:
" ' "The burden of pleading under Rule 32.3
and Rule 32.6(b) is a heavy one. Conclusions
unsupported by specific facts will not satisfy the
requirements of Rule 32.3 and Rule 32.6(b). The
22
CR-20-0228
full factual basis for the claim must be included in
the petition itself. If, assuming every factual
allegation in a Rule 32 petition to be true, a court
cannot determine whether the petitioner is
entitled to relief, the petitioner has not satisfied
the burden of pleading under Rule 32.3 and Rule
32.6(b). See Bracknell v. State, 883 So. 2d 724 (Ala.
Crim. App. 2003)."
" 'Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).
" ' " 'Rule 32.6(b) requires that the petition
itself disclose the facts relied upon in seeking
relief.' Boyd v. State, 746 So. 2d 364, 406 (Ala.
Crim. App. 1999). In other words, it is not the
pleading of a conclusion 'which, if true, entitle[s]
the petitioner to relief.' Lancaster v. State, 638 So.
2d 1370, 1373 (Ala. Crim. App. 1993)[, overruled
on other grounds by Robey v. State, 950 So. 2d
1235 (Ala. Crim. App. 2006)]. It is the allegation
of facts in pleading which, if true, entitle a
petitioner to relief. After facts are pleaded, which,
if true, entitle the petitioner to relief, the
petitioner is then entitled to an opportunity, as
provided in Rule 32.9, Ala. R. Crim. P., to present
evidence proving those alleged facts."
" 'Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim. App. 2003).
"[T]he procedural bars of Rule 32[.2, Ala. R. Crim. P.,] apply
with equal force to all cases, including those in which the
death penalty has been imposed." Burgess v. State, 962 So. 2d
272, 277 (Ala. Crim. App. 2005).
" 'Some of [Largin's] claims were also dismissed based on
his failure to comply with Rule 32.7(d), Ala. R. Crim. P. In
discussing the application of this rule we have stated:
" ' "[A] circuit court may, in some
23
CR-20-0228
circumstances, summarily dismiss a
postconviction petition based on the
merits of the claims raised therein.
Rule 32.7(d), Ala. R. Crim. P., provides:
" ' " 'If the court
determines that the petition
is not sufficiently specific,
or is precluded, or fails to
state a claim, or that no
material issue of fact or law
exists which would entitle
the petitioner to relief
under this rule and that no
purpose would be served by
any further proceedings,
the court may either
dismiss the petition or
grant leave to file an
amended petition. Leave to
amend shall be freely
granted. Otherwise, the
court shall direct that the
proceedings continue and
set a date for hearing.'
" ' " ' "Where a simple reading of the
petition for post-conviction relief shows
that, assuming every allegation of the
petition to be true, it is obviously
without merit or is precluded, the
circuit court [may] summarily dismiss
that petition." ' Bishop v. State, 608 So.
2d 345, 347-48 (Ala. 1992) (emphasis
added) (quoting Bishop v. State, 592
So. 2d 664, 667 (Ala. Crim. App. 1991)
(Bowen, J., dissenting)). See also
Hodges v. State, 147 So. 3d 916, 934
24
CR-20-0228
(Ala. Crim. App. 2007) (a
postconviction claim is 'due to be
summarily dismissed [when] it is
meritless on its face')[, rev'd on other
grounds, Ex parte Hodges, 147 So. 3d
973 (Ala. 2011) ]."
" 'Bryant v. State, 181 So. 3d 1087, 1102 (Ala.
Crim. App. 2011).'
"Washington v. State, 95 So. 3d 26, 38–39 (Ala. Crim. App.
2012).
"[Largin's] remaining claims were denied by the circuit
court after [Largin] was afforded the opportunity to prove
those claims at an evidentiary hearing. See Rule 32.9(a), Ala.
R. Crim. P.
"When the circuit court conducts an evidentiary
hearing, '[t]he burden of proof in a Rule 32 proceeding rests
solely with the petitioner, not the State.' Davis v. State, 9 So.
3d 514, 519 (Ala. Crim. App. 2006), rev'd on other grounds, 9
So. 3d 537 (Ala. 2007). '[I]n a Rule 32, Ala. R. Crim. P.,
proceeding, the burden of proof is upon the petitioner seeking
post-conviction relief to establish his grounds for relief by a
preponderance of the evidence.' Wilson v. State, 644 So. 2d
1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P.,
specifically provides that '[t]he petitioner shall have the
burden of ... proving by a preponderance of the evidence the
facts necessary to entitle the petitioner to relief.' '[W]hen the
facts are undisputed and an appellate court is presented with
pure questions of law, that court's review in a Rule 32
proceeding is de novo.' Ex parte White, 792 So. 2d 1097, 1098
(Ala. 2001). 'However, where there are disputed facts in a
postconviction proceeding and the circuit court resolves those
disputed facts, "[t]he standard of review on appeal ... is
whether the trial judge abused his discretion when he denied
the petition." ' Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim.
25
CR-20-0228
App. 2003) (quoting Elliott v. State, 601 So. 2d 1118, 1119
(Ala. Crim. App. 1992)).
"Finally, '[a]lthough on direct appeal we reviewed
[Largin's] capital-murder conviction for plain error, the plain-
error standard of review does not apply when an appellate
court is reviewing the denial of a postconviction petition
attacking a death sentence.' James v. State, 61 So. 3d 357,
362 (Ala. Crim. App. 2010) (citing Ex parte Dobyne, 805 So.
2d 763 (Ala. 2001)). With these principles in mind, we review
the claims raised by [Largin] on appeal."
Marshall v. State, 182 So. 3d 573, 580-82 (Ala. Crim. App. 2014).
DISCUSSION
On appeal, Largin argues that the circuit court erred in denying or
summarily dismissing several claims in which Largin alleged that his
counsel was ineffective.
" 'To prevail on a claim of ineffective assistance of
counsel, the petitioner must show (1) that counsel's
performance was deficient and (2) that the petitioner was
prejudiced by the deficient performance. See Strickland v.
Washington, 466 U.S. 668 (1984).
" ' "Judicial scrutiny of counsel's performance
must be highly deferential. It is all too tempting
for a defendant to second-guess counsel's
assistance after conviction or adverse sentence,
and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful,
to conclude that a particular act or omission of
counsel was unreasonable. […] A fair assessment
of attorney performance requires that every effort
be made to eliminate the distorting effects of
26
CR-20-0228
hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong
presumption that counsel's conduct falls within
the wide range of reasonable professional
assistance; that is, the defendant must overcome
the presumption that, under the circumstances,
the challenged action 'might be considered sound
trial strategy.' There are countless ways to provide
effective assistance in any given case. Even the
best criminal defense attorneys would not defend
a particular client in the same way."
" 'Strickland, 466 U.S. at 689.
" ' "[T]he purpose of ineffectiveness
review is not to grade counsel's
performance. See Strickland [v.
Washington], [466 U.S. 668,] 104 S. Ct.
[2052] at 2065 [(1984)]; see also White
v. Singletary, 972 F.2d 1218, 1221
(11th Cir. 1992) ('We are not interested
in grading lawyers' performances; we
are interested in whether the
adversarial process at trial, in fact,
worked adequately.'). We recognize
that '[r]epresentation is an art, and an
act or omission that is unprofessional
in one case may be sound or even
brilliant in another.' Strickland, 104 S.
Ct. at 2067. Different lawyers have
different gifts; this fact, as well as
differing circumstances from case to
case, means the range of what might be
a reasonable approach at trial must be
broad. To state the obvious: the trial
27
CR-20-0228
lawyers, in every case, could have done
something more or something
different. So, omissions are inevitable.
But, the issue is not what is possible or
'what is prudent or appropriate, but
only what is constitutionally
compelled.' Burger v. Kemp, 483 U.S.
776, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d
638 (1987)."
" 'Chandler v. United States, 218 F.3d 1305, 1313–
14 (11th Cir. 2000) (footnotes omitted).
" 'An appellant is not entitled to "perfect
representation." Denton v. State, 945 S.W.2d 793,
796 (Tenn. Crim. App. 1996). "[I]n considering
claims of ineffective assistance of counsel, 'we
address not what is prudent or appropriate, but
only what is constitutionally compelled.' " Burger
v. Kemp, 483 U.S. 776, 794 (1987).'
"Yeomans v. State, 195 So. 3d 1018, 1025-26 (Ala. Crim. App.
2013). Additionally, ' "[w]hen courts are examining the
performance of an experienced trial counsel, the presumption
that his conduct was reasonable is even stronger." ' Ray v.
State, 80 So. 3d 965, 977 n.2 (Ala. Crim. App. 2011) (quoting
Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.
2000)).
"We also recognize that when reviewing claims of
ineffective assistance of counsel 'the performance and
prejudice components of the ineffectiveness inquiry are mixed
questions of law and fact.' Strickland v. Washington, 466 U.S.
668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This Court,
however, has held that when the same judge presides over
both the original trial and the postconviction proceeding—as
is the case here—and finds that, under the second prong of
Strickland, trial counsel's errors would not have resulted in
28
CR-20-0228
prejudice, '[w]e afford the experienced judge's ruling
"considerable weight." ' Washington v. State, 95 So. 3d 26, 53
(Ala. Crim. App. 2012) (emphasis added) (affirming the circuit
court's denial of Washington's postconviction ineffective-
assistance-of-counsel claim by applying the 'considerable
weight' standard). See also State v. Gamble, 63 So. 3d 707,
721 (Ala. Crim. App. 2010) (affirming the circuit court's
granting of Gamble's postconviction ineffective-assistance-of-
counsel claim by applying the 'considerable weight' standard)
(citing Francis v. State, 529 So. 2d 670, 673 n.9 (Fla. 1988)
('Postconviction relief motions are not abstract exercises to be
conducted in a vacuum, and this finding is entitled to
considerable weight.'))."
Marshall, 182 So. 3d at 582-83. With these principles in mind, we
address Largin's arguments on appeal.
I. CLAIMS DENIED AFTER THE EVIDENTIARY HEARING
Largin argues first that the circuit court erred in denying claims
I.A.1. and I.A.5. after the evidentiary hearing.
A.
Largin argues that "[t]he circuit court erred in denying Largin's
claim [I.A.5.] that [his trial counsel were ineffective] by calling Karen
Salekin to testify over her express warning that her testimony would do
more harm than good." (Largin's brief, p. 20.)
In denying this claim, the Rule 32 court found:
"In claim I.A.5 of his petition, Largin challenges trial
counsel's decision to call mitigation expert Dr. Karen Salekin
29
CR-20-0228
to testify during the penalty phase. This Court recognizes that
trial counsel's 'decision whether to retain witnesses, including
expert witnesses, is a matter of trial strategy and "a tactical
decision will not form the basis for an ineffective assistance of
counsel claim unless it was so patently unreasonable that no
competent attorney would have chosen it." ' Woodward [v.
State], 276 So. 3d [713,] 764 [(Ala. Crim. App. 2018)]; see also
Clark [v. State], 196 So. 3d [285,] 306 (Ala. Crim. App. 2015)]
(' " 'Hindsight does not elevate unsuccessful trial tactics into
ineffective assistance of counsel.' " ' [quoting Davis v. State, 44
So. 3d 1118, 1132 (Ala. Crim. App. 2009), quoting in turn
People v. Eisemann, 248 A.D.2d 484, 484, 670 N.Y.2d 39, 40-
41 (1998)]). Additionally, this Court must review such
challenges objectively and 'indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance[.]' Benjamin v. State, 156 So. 3d 424,
430 (Ala. Crim. App. 2013) (citation omitted). In this instance,
Largin has not overcome this presumption and shown that
trial counsel's decision to call Dr. Salekin was unreasonable
based on the circumstances at the time of trial.
"First to the extent that Largin's petition alleges that
trial counsel deficiently investigated the mitigation evidence,
this Court finds that counsel performed a reasonable
investigation. During the evidentiary hearing, Dr. Salekin
testified that she was retained early in Largin's case, that she
reviewed multiple records and spoke with multiple
individuals, and that she cautioned trial counsel that her
testimony could potentially be harmful. [Leon] Storie testified
that he and Smith not only met with Dr. Salekin regularly but
also met with Investigator Al Kofman to discuss interviews
Kofman had conducted. Storie also noted that Dr. Salekin
expressed her concern to trial counsel that she 'was afraid
that her testimony had potential to backfire.' He further
testified that he had consulted with other attorneys who had
worked death penalty cases about the best approach for
Largin's case. There was evidence presented that [James]
Smith researched parricide and mental health definitions, as
30
CR-20-0228
well as obtained a reference manual on mental disability law
and evidence and the Alabama Trial Manual published by the
Equal Justice Initiative. Thus, this Court finds that trial
counsel adequately investigated and prepared for potential
mitigation evidence in this case.
"Second, this Court finds that trial counsel made a
reasonable strategic decision to call Dr. Salekin. Largin was
convicted of shooting his mother and father multiple times;
both died from close-range gunshots to the head. Largin [v.
State], 233 So. 3d [374,] at 388 [(Ala. Crim. App. 2015)]. After
murdering them, Largin tossed his parents' bodies 'down the
stairs leading to the cellar in their home.' Id. Though he
attempted to clean up the murder scene, he eventually gave
up, stole an automobile, credit cards, and a substantial
amount of cash, and set out on a cocaine binge. Id. at 388-89.
This Court ultimately found two aggravating factors: Largin
committed the murders during a robbery, and he murdered
his parents pursuant to one act, scheme, or course of conduct.
"As the record on direct appeal reflects, counsel offered
evidence to show Largin suffered from a turbulent family
history and presented testimony from Dr. Salekin regarding
Largin's diagnosis of narcissistic personality disorder and the
relationship between his family history and his diagnosis.
This Court finds that her testimony contextualized Largin's
personality disorder, particularly that it explained that
Largin's personality disorder amplified his reaction to conflict
and explained guilt-phased testimony regarding his response
to his parents' murder. Dr. Salekin testified that Largin's
personality disorder was a 'severe,' 'significant mental illness,'
and noted that individual therapy could work 'for someone
like' him. Though she noted that characteristics of the
disorder included manipulation, deceitfulness, and an
inability to relate to others, she found that Largin's
characteristics were 'so elevated that they impair[ed] his
ability to function on a day-to-day basis, primarily …
interpersonally[.]' Dr. Salekin testified that his personality
31
CR-20-0228
disorder was the result of both biological and environmental
factors. She explained that the Largins were a 'high-conflict'
family, which 'would impact child development in a sense of
making them fearful.' She further explained that 'high-
conflict families tend to produce individuals who have deficits
in interpersonal functioning. Narcissistic personality is one
step above what [you] may expect in other people in similar
situations.' Dr. Salekin testified that Largin's disorder
worked to amplify issues that resulted from his family history.
Dr. Salekin also explained that Largin and his sister, [Sheri],
shared the same behavior in conflict as that modelled by their
parents, who used physical violence during confrontations.
She testified that their violent response to confrontation was
a 'pattern in the home that these kids learned … over the
course of time.' She noted that Largin's witnessing the alleged
physical abuse of his cousin, who lived in the Largin
household until Largin was approximately seven years old,
placed him 'in an environment where he [was] recognizing
and being exposed to verbal violence ... as well as physical
violence, so it would impact him.' Dr. Salekin opined that
Largin's behavior in treatment facilities and his suicide
attempts were consistent with his personality disorder. The
suicide attempts allegedly demonstrated Largin's 'inability to
make good decisions [and] his impulsive behaviors.' Further,
Storie explained during the evidentiary hearing that their
overall theory for mitigation was to show that Jimmy Largin
'was an abusive man' and had 'created an environment where
[his children] were afraid of him … [that Largin] didn't really
have much of a shot, given that environment.' He testified
that '[t]he fact that there w[ere] parents involved was always
an important factor because we thought a reasonable juror
would ask why would a person kill their parents. That is not
your typical just killing somebody because of a drug deal or
whatever.' Storie testified that '[a]t the time that [he and
Smith] were preparing and strategizing … [Dr. Salekin's]
concerns [about her testimony] were heard and noted';
however, he and Smith 'felt that there was a possibility that
[her testimony] could be helpful.' Storie further stated that
32
CR-20-0228
although Smith made the ultimate decision to call Dr.
Salekin, Smith 'articulated that he felt that she would offer
something that would explain the behavior that the jury had
already found had taken place.'
"An examination of Smith's oral arguments contained in
the transcript of the October 1, 2009, sentencing hearing …
demonstrated trial counsel's trial strategy in calling Dr.
Salekin. Pages 35-36 of the sentencing transcript contain the
following excerpts:
" '… Secondly, extreme mental or emotional
disturbance, that he suffers from that and suffered
from that at the time of the commission of the
offense. The State wants to minimize the
narcissistic personality disorder, but we heard Dr.
Salekin testify that it was as to Mr. Largin
debilitating. The problem is that narcissistic
personality disorder by its very nature, its
symptoms are the things that make us not like a
person. Its symptom cluster is to cause a person to
lie, to be manipulative, and to not understand the
feelings of others. But those are symptoms of an
illness, a mental or emotional disturbance, a
condition over which he doesn't have control.
" '… Thirdly, that his capacity to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of the law was
substantially impaired. And again, this was from
his narcissistic personality disorder, his
depression, his mental and emotional disturbance
which was testified to by Dr. Salekin and which
was evident in the records reviewed. She talked
about the records and was questioned about the
records from Bryce Hospital, from North Harbor,
from Indian Rivers, from the substance abuse
place in Mobile where he was, Serenity House. So
33
CR-20-0228
there was a history of problems of being able to
conform his conduct to the requirements of law
because of his substantial impairment caused by a
mental condition over which he had no control.'
"Based on the above, this Court finds that Largin has
not met his burden and shown that no reasonable attorney
would have chosen to present Dr. Salekin's testimony during
the penalty phase. This Court further finds that, even
assuming counsel performed deficiently by calling Dr. Salekin
to testify during the penalty phase, Largin has not met his
burden of proving prejudice under Strickland. At trial, this
Court determined that evidence that Largin suffered from
narcissistic personality disorder was a non-statutory
mitigating circumstance and considered such evidence
accordingly when weighing the aggravating and mitigating
circumstances. Largin has not shown that but for Dr.
Salekin's testimony, he would have been sentenced to life
without the possibility of parole for the murder of his parents.
Accordingly, this Court finds Largin's ineffectiveness claim is
without merit …."
(C. 625-29 (some citations omitted).)
Largin argues that trial counsel's decision to call Dr. Salekin to
testify was unreasonable under the circumstances. He asserts that, in
calling her to testify, trial counsel disregarded Dr. Salekin's "informed
and professional judgment" based on her investigation into Largin's
background. He also cites Dr. Salekin's concerns about testifying and her
"clear and repeated warnings" that her testimony might be more harmful
than helpful. He argues that Storie's explanation—that he and Smith
34
CR-20-0228
knew Dr. Salekin's testimony could backfire but that they hoped it would
help explain Largin's behavior—is "unavailing and begets more
questions." He argues that "counsel's decision boiled down to nothing
more than hope that Salekin's testimony could be more helpful than
harmful." (Largin's brief, pp. 27-38.)
First, we note that Largin does not challenge the circuit court's
finding that trial counsel "adequately investigated and prepared for
potential mitigation in this case." (C. 626.) Instead, Largin's argument is
that no reasonable attorney would have called Dr. Salekin to testify
under the circumstances. This argument lacks merit.
" 'The decision to call, or not to call, an expert witness fits
squarely within the realm of strategic or tactical decisions.
See, e.g., Commonwealth v. Facella, 478 Mass. 393, 413, 85
N.E.3d 665 (2017) (decision not to call psychiatric expert
reasonable strategic decision); Commonwealth v. Hensley,
454 Mass. 721, 739, 913 N.E.2d 339 (2009) (decision not to call
expert strategic). Accordingly, we evaluate whether the
decision was "manifestly unreasonable" at the time it was
made. [Commonwealth v.] Holland, 476 Mass. [801] at 812, 73
N.E.3d 276 [(2017)].' "
State v. Lewis, [Ms. CR-20-0372, May 6, 2022] ___ So. 3d ___, ___ (Ala.
Crim. App. 2022) (quoting Commonwealth v. Ayala, 481 Mass. 46, 63,
112 N.E.3d 239, 253 (2018) (footnote omitted)). See also Brown v. State,
288 Ga. 902, 909, 708 S.E.2d 294, 301 (2011) ("[A] tactical decision will
35
CR-20-0228
not form the basis for an ineffective assistance of counsel claim unless it
was 'so patently unreasonable that no competent attorney would have
chosen it.' McKenzie v. State, 284 Ga. 342, 347, 667 S.E.2d 43 (2008).").
Counsel's decisions are reviewed objectively, and " 'a court must indulge
a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance.' " Benjamin v. State, 156 So. 3d
424, 430 (Ala. Crim. App. 2013) (quoting Strickland, 463 U.S. at 690-91.)
Largin cites several decisions for the proposition that there are
"inherent dangers of evidence regarding personality disorders in death
penalty cases." 6 (Largin's brief, p. 30.) Save one, those decisions involve
claims that trial counsel was ineffective for not putting on evidence of a
6Largin cites Darden v. Wainwright, 477 U.S. 168, 186 (1986);
Littlejohn v. Royal, 875 F.3d 548, 564 (10th Cir. 2017); Evans v.
Secretary, Dep't of Corrs., 703 F.3d 1316, 1329 (11th Cir. 2013); Warden,
Georgia Diagnostic Prison, 694 F.3d 1230, 1270 (11th Cir. 2012);
Worthington v. Roper, 631 F.3d 487, 503 (8th Cir. 2011); DeYoung v.
Schofield, 609 F.3d 1260, 1288 (11th Cir. 2010); Reed v. Secretary, Dep't
of Corrs., 593 F.3d 1217, 1248 (11th Cir. 2010); Holsey v. Cummings v.
Secretary for the Dep't of Corrs., 588 F.3d 1331, 1368 (11th Cir. 2009);
Land v. Allen, 573 F.3d 1211, 1222 (11th Cir. 2009); Nelson v.
Quarterman, 472 F.3d 287, 307-08 (5th Cir. 2006); and Guinan v.
Armontrout, 909 F.2d 1224, 1230 (8th Cir. 1990).
36
CR-20-0228
personality disorder in the penalty phase of a capital-murder trial. 7 In
each case the courts held that, under the circumstances, counsel was not
ineffective. But those decisions simply do not compel the inverse
conclusion that Largin's trial counsel was ineffective for putting on
evidence of his personality disorder. That Largin cites no decision in
which trial counsel has been found ineffective for putting on such
7In Nelson v. Quarterman, 472 F.3d 287, 307-08 (5th Cir. 2006),
trial counsel put on evidence of a personality disorder. Largin quotes this
statement from that decision:
"[I]t is likely that a juror considering Nelson's evidence of
borderline personality disorder would have felt that he could
give the evidence only one possible effect via the future-
dangerousness issue: Such a juror would have seen the
evidence as only aggravating, because Nelson's borderline
personality disorder and the difficulty of treating it increase
the likelihood that Nelson will act out violently again.
Consequently, there would be no vehicle to give mitigating
effect to his evidence of borderline personality disorder, i.e.,
no way for the jury to express its conclusion that even though
he is likely to be dangerous in the future, his mental illness
makes him unworthy of the death penalty."
472 F.3d at 307-08. When read in context, that quote shows the
problem with the former Texas statutory scheme at issue was
because that scheme did not allow the jury to find mitigating the
evidence Nelson offered about his personality disorder. The court in
Nelson did not hold that, were it separated from the
unconstitutional statutory scheme, the evidence could not have
been mitigating. Thus, Nelson does not support Largin's position.
37
CR-20-0228
evidence is telling.
In Morton v. Secretary, Florida Department of Corrections, 684
F.3d 1157 (11th Cir. 2012), the court addressed Morton's claim that his
counsel was ineffective for presenting, at the penalty phase, expert
testimony about the petitioner's antisocial personality disorder. The
court stated:
"Habeas petitioners routinely ask us to rule that they received
ineffective assistance when their trial lawyers failed to
present evidence of an antisocial personality disorder, see,
e.g., Reed [v. Secretary, Dep't of Corrs.], 593 F.3d [1217,]
1245-49 [(11th Cir. 2010)]; Cummings [v. Secretary for the
Dep't of Corrs.], 588 F.3d [1331,] 1365-68 [11th Cir. 2009)]; …
so [trial counsel] chose a mitigation strategy that many
postconviction lawyers contend can be effective. Although we
have stated that evidence of antisocial personality disorder is
'not "good" mitigation,' Reed, 593 F.3d at 1246, we have never
ruled that a capital defense lawyer renders ineffective
assistance as a matter of law when he introduces evidence of
antisocial personality disorder for mitigation purposes. And
for good reason. In Eddings v. Oklahoma, the Supreme Court
of the United States explained that 'the Eighth and
Fourteenth Amendments require that the sentencer ... not be
precluded from considering, as a mitigating factor, any aspect
of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.' 455 U.S. 104, 110, 102 S.
Ct. 869, 874, 71 L. Ed. 2d 1 (1982) (quoting Lockett v. Ohio,
438 U.S. 586, 604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973(1978)) (alteration and emphasis in original) (internal
quotation marks omitted). And the Supreme Court ruled that
a sentencing court violated the constitutional rights of the
defendant by failing to consider expert testimony that the
38
CR-20-0228
defendant had an 'antisocial personality.' Id. at 107-08, 102
S. Ct. at 873-74.
"In the light of Eddings, there cannot be a per se rule
that a lawyer renders ineffective assistance by presenting
evidence of an antisocial personality disorder for purposes of
mitigation. The Supreme Court of Florida, at Morton's urging,
reasonably ruled that 'antisocial personality disorder is a
valid mitigating circumstance for trial courts to consider and
weigh.' Morton [v. State], 789 So. 2d [324,] 329-30 [(Fla.
2001)] (citing Eddings, 455 U.S. at 110, 102 S. Ct. at 874).
That a diagnosis of antisocial personality disorder has
negative characteristics or presents a double-edged sword
renders it uniquely a matter of trial strategy that a defense
lawyer may, or may not, decide to present as mitigating
evidence."
684 F.3d at 1168 (emphasis added; some citations omitted). The court
also addressed Morton's argument that his counsel had performed
deficiently by calling the expert, Dr. DelBeato, "to testify at the retrial of
the penalty phase knowing that [he] had testified at the first penalty
phase that Morton was a sociopath and shared traits in common with
serial killers." 684 F.3d at 1168. Citing "Strickland's deferential
standard," the court held that trial counsel
"could have reasonably determined that Dr. DelBeato's expert
testimony that Morton's childhood caused him to develop
antisocial personality disorder, which led Morton to murder
Weisser and Bowers, was necessary to explain to the jury why
Morton's childhood might mitigate his moral culpability for
the two murders. As Justice Thurgood Marshall once
explained, '[e]xpert knowledge of human motivation' can be
39
CR-20-0228
'highly relevant in the eyes of the jurors, for it might ... offer[]
an alternative explanation for why [the petitioner] killed.'
Boyd v. North Carolina, 471 U.S. 1030, 1034, 105 S. Ct. 2052,
2054, 85 L. Ed. 2d 324 (1985) (Marshall, J., dissenting from
denial of petition for writ of certiorari). In the absence of
expert testimony that explains how a murderer's troubled
past could have led him to commit a gruesome crime, Justice
Marshall explained that 'scattered personal history evidence
might have ... little apparent significance,' but 'expert
evidence might well ... provide[] a link between the personal
history evidence and that extenuation or reduction of the
moral culpability of the killing that might call for a sentence
of less than death.' Id."Expert testimony that Morton's traumatic childhood
experience caused him to develop a psychological disorder
that led him to murder an innocent elderly woman and her
son would have provided context for Morton's mitigation case
in the light of lay witness testimony presented during the
resentencing. Morton's sister, Angela, testified during the
resentencing that Morton suffered physical abuse from their
father when Morton was a child. Angela also testified that
their father raped her when she was a young girl. The problem
for Morton's theory was that Angela suffered a more tragic
childhood than Morton, but she was able to marry, find a job,
and become a productive member of society. The horrors that
Angela suffered during childhood did not cause her to become
a murderer. Dr. DelBeato's expert testimony that Morton's
troubled childhood caused him to develop a psychological
disorder that led him to kill provided the jury with an
explanation regarding why some people with troubled
childhoods commit heinous crimes while others do not. [Trial
counsel] could have reasonably decided that Dr. DelBeato's
testimony was necessary to explain why Morton's childhood
mitigated his moral culpability for the murders.
"[Trial counsel] could have also reasonably decided to
call Dr. DelBeato to testify at the retrial of the penalty phase
40
CR-20-0228
to preempt any effort by the prosecution to prove the same
thing. See Awkal v. Mitchell, 613 F.3d 629, 642 (6th Cir. 2010)
(en banc) ('[K]nowing that the prosecution was going to call
[the expert] anyway, Awkal's counsel opted to call [the expert]
as a witness to take some of the "sting" out of [the expert's]
adverse opinion by being able to present his favorable
testimony first and by incorporating the negative testimony
into Awkal's case-in-chief.'). Florida law provides that the
prosecution 'shall be provided a full opportunity to rebut the
existence of mitigating factors urged by [the defendant] and
to introduce evidence tending to diminish their weight if they
cannot be rebutted.' Ellis v. State, 622 So. 2d 991, 1001 (Fla.
1993). With Dr. DelBeato's testimony from the first penalty
phase in hand, any prosecutor worth his salt would have
attempted to use the damaging parts of that testimony to
argue to the jury that, far from being mitigating, the
testimony of Morton's mother, sister, and others about
Morton's troubled childhood established that Morton had
traits in common with serial killers and was a sociopath who
could not be rehabilitated. If [trial counsel] had not called Dr.
DelBeato during their case-in-chief, the prosecution could
have argued that [trial counsel] were hiding unfavorable
information from the jury, which would have damaged their
credibility. Instead of allowing the prosecution to magnify the
harmful aspects of Dr. DelBeato's testimony, [trial counsel]
downplayed those aspects of Dr. DelBeato's testimony by
calling him as a witness during their case-in-chief and
acknowledging the negative implications of his diagnosis of
antisocial personality disorder."
684 F.3d at 1169-70.
Like the petitioner in Morton, Largin has not shown that his trial
counsel performed deficiently in calling an expert to testify about a
personality disorder with negative characteristics. The record supports
41
CR-20-0228
the trial court's finding that "trial counsel made a reasonable strategic
decision to call Dr. Salekin." (C. 626.) The record shows that the evidence
against Largin was strong, including his inculpatory statements to the
police that it "wasn't murder … not in a cold-blooded sense" and that he
"didn't try to hide it. [He] cleaned up a little bit and said to hell with it,
[he wasn't] going to mess with this." (Trial R. 1293.) Largin refused to
accept responsibility for murdering his parents, and evidence showed
that he lacked an emotional response when he was told about the murder
of his parents. The record supports the circuit court's finding that Dr.
Salekin's testimony during the penalty phase "contextualized Largin's
personality disorder, particularly that it explained that Largin's
personality disorder amplified his reaction to conflict and explained guilt-
phase testimony regarding his response to his parents' murder." (C. 626.)
As stated above, Dr. Salekin testified that Largin's personality
disorder was "severe" and a "significant mental illness" but that
individual therapy could work "for someone like" him. (Trial R. 2318,
2332-33, 2338.) In Dr. Salekin's opinion, Largin's personality disorder
"impair[ed] his ability to function on a day-to-day basis, primarily …
interpersonally." (Trial R. 2320.) Dr. Salekin testified that she thought
42
CR-20-0228
that both biological and environmental factors caused his personality
disorder. (Trial R. 2322, 2416.) Describing the Largin family as "high
conflict," Dr. Salekin testified that those "families tend to produce
individuals who have deficits in interpersonal functioning." (Trial R.
2325-26.) And she testified that Largin's personality disorder amplified
issues such as "regulating his emotion and interpersonal relationships."
(Trial R. 2334.)
Dr. Salekin testified that, based on her investigation, Largin's
parents used physical violence during confrontations and, she said,
Largin and his younger sister, Sheri Lake, learned that characteristic
from their parents. (Trial R. 2326-27.) She described abuse that Largin
allegedly witnessed in the household while his cousin lived with them.
(Trial R. 2331-32.) Dr. Salekin stated that Largin's behavior in treatment
facilities and his suicide attempts were consistent with his personality
disorder. (Trial R. 2358, 2363, 2411.)
The strategic decision to present evidence of Largin's personality
disorder belonged to Largin's trial counsel—not to Dr. Salekin. Largin
has not shown that trial counsel's decision was deficient performance
under Strickland.
43
CR-20-0228
Even if that decision were deficient performance, Largin has not
shown prejudice under Strickland. The sentencing court found Largin's
personality disorder to be a nonstatutory mitigating circumstance. (Trial
R. 2599.) Dr. Salekin's (and Largin's) later disagreement with that
finding does not negate it. "In assessing prejudice under Strickland, the
question …. [i]s whether it is 'reasonably likely' the result would have
been different" if counsel acted differently. Harrington v. Richter, 562
U.S. 86, 111 (2011) (citations omitted). "The likelihood of a different
result must be substantial, not just conceivable." Id. Addressing a claim
alleging ineffectiveness during the penalty phase where a death sentence
required a unanimous jury recommendation, the United States Supreme
Court held that "prejudice here requires only 'a reasonable probability
that at least one juror would have struck a different balance' regarding
Andrus' 'moral culpability.' " Andrus v. Texas, 590 U.S. ___, ____, 140 S.
Ct. 1875, 1887 (2020) (quoting Wiggins v. Smith, 539 U.S. 510, 537-38
(2003)). 8
8Unlike the Texas statutory scheme in Andrus, Alabama does not
require the jury to be unanimous in its decision to recommend a death
sentence. § 13A-5-46(f), Ala. Code 1975 ("The decision of the jury to
recommend a sentence of death must be based on a vote of at least 10
jurors.").
44
CR-20-0228
The Rule 32 judge—the same judge who sentenced Largin to
death—found:
"[E]ven assuming counsel performed deficiently by calling Dr.
Salekin to testify during the penalty phase, Largin has not
met his burden of proving prejudice under Strickland. At trial,
this Court determined that evidence that Largin suffered
from narcissistic personality disorder was a non-statutory
mitigating circumstance and considered such evidence
accordingly when weighing the aggravating and mitigating
circumstances. Largin has not shown that, but for Dr.
Salekin's testimony, he would have been sentenced to life
without the possibility of parole for the murder of his
parents."
(C. 629.) As stated above:
"[W]hen the same judge presides over both the original trial
and the postconviction proceeding—as is the case here—and
finds that, under the second prong of Strickland, trial
counsel's errors would not have resulted in prejudice, '[w]e
afford the experienced judge's ruling "considerable weight." '
Washington v. State, 95 So. 3d 26, 53 (Ala. Crim. App. 2012)
(emphasis added) (affirming the circuit court's denial of
Washington's postconviction ineffective-assistance-of-counsel
claim by applying the 'considerable weight' standard). See
also State v. Gamble, 63 So. 3d 707, 721 (Ala. Crim. App.
2010) (affirming the circuit court's granting of Gamble's
postconviction ineffective-assistance-of-counsel claim by
applying the 'considerable weight' standard) (citing Francis v.
State, 529 So. 2d 670, 673 n.9 (Fla. 1988) ('Postconviction
relief motions are not abstract exercises to be conducted in a
vacuum, and this finding is entitled to considerable
weight.'))."
Marshall, 182 So. 3d at 583.
45
CR-20-0228
We agree with the circuit court that Largin did not show prejudice
under Strickland. He did not show that, had counsel not called Dr.
Salekin to testify, "[t]he likelihood of a different result [was] substantial."
Id. Nor did he show " 'a reasonable probability that at least one juror
would have struck a different balance' regarding [Largin's] 'moral
culpability.' "9 Andrus, supra. We find no merit in Largin's assertions
that his "case presents a rare situation where it is possible to objectively
conclude that counsel's decision to put on a witness strengthened the
State's case for death" or that Dr. "Salekin's testimony provided the bulk
of the aggravating evidence against Largin." (Largin's brief, pp. 40-41,
43-44.)
Largin is due no relief on this claim.
B.
Largin argues that "[t]he circuit court erred in denying Largin's
claim [I.A.1.] that [his trial counsel were ineffective] by failing to present
a credible, cohesive, and sound theory of the defense linking the guilt and
penalty phases of trial." (Largin's brief, p. 44.)
9In
Largin's case, the jury voted 11-1 to recommend death. Even if
one more juror had voted against death, the jury still could have
recommended a death sentence under § 13A-5-46(f), Ala. Code 1975.
46
CR-20-0228
In denying this claim, the Rule 32 court stated:
"Largin alleges that trial counsel's decision to deny guilt
during the guilt phase while then presenting mitigating
evidence to explain why he murdered his parents during the
penalty phase was ineffective assistance because it presented
'conflicting' theories of defense to the jury. Notably, '[t]rial
counsel's decisions regarding what theory of the case to
pursue represent the epitome of trial strategy.' Clark [v.
State], 196 So. 3d [285,] 306 (Ala. Crim. App. 2015)] (citation
omitted). Simply because counsel's 'defense strategy was
ultimately unsuccessful with the jury does not render
counsel's performance deficient.' Id. (internal citations
omitted). With these concepts in mind, this Court finds that
Largin has not shown that trial counsel provided ineffective
assistance based on the theory of defense counsel presented
at trial ….
"First, this Court notes that it presided over Largin's
trial and heard strong evidence that Largin murdered his
parents, including his inculpatory statements to Investigator
Miller. Second, this Court notes that lead counsel, James
Smith, was an experienced criminal defense attorney who had
previously tried multiple capital murder cases before
representing Largin. In his petition, Largin argues that trial
counsel should have presented a defense wherein Largin
accepted responsibility for his parents' murders to 'harmonize'
the guilt phase with the mitigation evidence presented during
the penalty phase. This Court finds, however, that there was
no evidence offered during the evidentiary hearing to indicate
that such a theory of defense was plausible. Indeed, Leon
Storie testified that Largin's case was difficult because there
was strong evidence of Largin's guilt and Largin had
confessed to Investigator Miller. Storie also testified that
although a plea agreement was reached, Largin refused to
admit and accept responsibility for his parents' murder. This
is further reflected in the record on direct appeal and from
this Court's own recollection of the pretrial and trial
47
CR-20-0228
proceedings wherein Largin refused to admit guilt to the
murder of his parents. Thus, given his adamant denial of
guilt, Largin has not shown by a preponderance of the
evidence that trial counsel performed deficiently when
counsel failed to present a theory of defense wherein Largin
accepted responsibility for his parents' murder or shown that
but for counsel's actions, the outcome of his case would have
been different. Further, this is not a case where trial counsel
were unaware of a plausible alternative theory of defense. See
Brownfield v. State, 266 So. 3d 777, 802 (Ala. Crim. App.
2017) ('[I]f an attorney is aware of a line of defense and makes
a conscious decision to reject it, rather than failing to raise it
simply because he was unaware that it existed, it is more
likely that the failure to raise the defense was reasonable.').
Rather, as Storie testified during the evidentiary hearing,
once plea negotiations broke down, trial counsel were left with
presenting a defense of 'basic reasonable doubt' or 'offer[ing]
an alternative scenario for the jury to consider.' Storie also
testified that although there was concern about presenting
the theory of an alternative suspect while presenting
mitigating evidence during the penalty phase, he and lead
counsel (Smith) would have discussed how to best link
potential theories of defense presented during both phases of
trial. … Storie explained that he and Smith would have
discussed the way to counteract the potential inconsistency.
Largin has not shown that this strategic decision was outside
the wide range of reasonable professional assistance or that
no competent attorney would have chosen it. He has also
failed to show that any alternative theory of defense—let
alone one that admitted guilt—was available to trial counsel
given Largin's demonstrated unwillingness to admit guilt or
that presenting such an alternative theory would have
changed the outcome of his case. See Strickland, 466 U.S. at
687; see also Brownfield, 266 So. 3d at 802; Clark, 196 So. 3d
at 306. As such, this Court finds Largin failed to show that his
counsel presented 'conflicting' theories of defense and he did
not meet his burden of establishing prejudice."
48
CR-20-0228
(C. 623-25 (some citations omitted).)
On appeal, Largin argues that a conviction was "all but certain" and
that "reasonably prudent counsel would not have embarked on a guilt-
phase strategy so incompatible with the defense's theory for sentencing."
(Largin's brief, p. 47.) He asserts that counsel should have "pursue[d] a
theory that recognized the strength of the State's case against Largin,
laid the groundwork to make a case of life in mitigation, maintained
credibility in the eyes of the sentencer, and … present[ed] evidence that
would only help, not hurt, Largin's case for innocence." (Id.) Largin also
argues that counsel's alleged ineffectiveness in calling Dr. Salekin
"bleed[s] into this claim as well." (Id.) Finally, Largin argues that
"[c]ounsel's theory of defense was concerning enough that the circuit
court recognized the dangers of the course counsel was following," even,
Largin says, "warn[ing] the defense about its perceived dangers of
continuing to vilify Sheri Largin Lake to the jury." (Id.)
First, as we held above, counsel was not ineffective in calling Dr.
Salekin to testify. There is thus no alleged ineffectiveness in that decision
to "bleed" into Largin's claim I.A.1.
Second, as for the circuit court's statements about Largin's
49
CR-20-0228
approach toward Sheri, the record shows that trial counsel argued that
counsel was offering this evidence not to attack Sheri but to offer evidence
about Largin's turbulent family history. (Trial R. 2249-54.) After the
circuit court confirmed that Dr. Salekin found this evidence relevant
during her assessment, the circuit court gave trial counsel a chance to
discuss this strategy with Largin before continuing the penalty phase.
(Trial R. 2255-56, 2269.)
Third, as the circuit court recognized in denying relief:
" ' "Hindsight does not elevate unsuccessful trial
tactics into ineffective assistance of counsel."
People v. Eisemann, 248 A.D.2d 484, 484, 670
N.Y.S.2d 39, 40-41 (1998).'
"Davis v. State, 44 So. 3d 1118, 1132 (Ala. Crim. App. 2009).
' "The fact that [a] defense strategy was ultimately
unsuccessful with the jury does not render counsel's
performance deficient." ' Bush v. State, 92 So. 3d 121, 160-61
(Ala. Crim. App. 2009) (quoting Heath v. State, 3 So. 3d 1017,
1029 (Fla. 2009)). See also Johnson v. State, 769 So. 2d 990,
1001 (Fla. 2000) (' "Simply because the ... defense did not
work, it does not mean that the theory of the defense was
flawed." ' (citations omitted))."
Clark v. State, 196 So. 3d 285, 306 (Ala. Crim. App. 2015). And “[t]he
reasonableness of counsel's actions may be determined or substantially
influenced by the defendant's own statements or actions." Strickland, 466
U.S. at 691.
50
CR-20-0228
Storie testified that, after Largin refused the plea deal, their
options for a guilt-phase theory were to "rely on basic reasonable doubt"
or "offer an alternative scenario" that someone else committed the
murders. (R. 61, 84.) He testified that "we ultimately went with offering
an alternative scenario."
The record shows that during the State's case-in-chief, George
McShan, an inmate who was incarcerated with Largin, testified that
Largin told him that he planned to tell his attorneys that "his sister [was]
involved … because his sister had assaulted his mama and father in the
past. And he said he was going to let them know that his sister had just
as much motive for killing his mom and dad as—just as much motive as
he had." (Trial R. 1534.)
Largin has not shown that trial counsel's strategies at the guilt and
penalty phases were unreasonable. As noted above, the case against
Largin was strong, and the evidence shows that he refused to take
responsibility and showed no remorse. In the face of that evidence,
Largin's refusal to admit guilt affected the trial strategies available to
his attorneys.
And even if counsel pursued inconsistent theories in the guilt phase
51
CR-20-0228
and penalty phase of the trial, it would not mean that counsel was
ineffective. As we recently stated:
"[N]umerous courts have held that it does not rise to the level
of ineffective assistance of counsel for an attorney to argue
inconsistent theories of the case.
" ' "[I]t is not uncommon for lawyers to argue
inconsistent defenses." [State v.] Westmoreland,
2008 WI App 15, ¶ 21, 307 Wis. 2d [429] at 440,
744 N.W.2d [919] at 925 [(2008)]. See also State v.
McDonald, 144 Wis. 2d 531, 533, 424 N.W.2d 411,
412 (1988) (Defendant "entered pleas of not guilty
and not guilty by reason of mental disease or
defect," contending that he did not kill the victim
but was not responsible if he did.); State v. Nelis,
2007 WI 58, ¶ 20, 300 Wis. 2d 415, 424, 733
N.W.2d 619, 623 ("Nelis argued at trial that the
evidence did not show that he and Diane S. had
sexual intercourse on the night at issue. He
further argued that, even if they did have sexual
intercourse that night, it was consensual."); Brown
v. Dixon, 891 F.2d 490, 494-495 (4th Cir. 1989)
(Inconsistent defenses "that Brown either did not
commit the murders or did so while drunk" was not
ineffective assistance of counsel.).
" '….
" 'In light of the not uncommon practice of
lawyers to argue inconsistent theories, we cannot
say that the decision of Dekoria Marks's trial
lawyer to argue them here deprived her of the
right to constitutionally effective assistance,
irrespective of whether we or the trial court view
that strategy as the best. As we noted in
Westmoreland, 2008 WI App 15, ¶ 21, 307 Wis. 2d
52CR-20-0228
at 440, 744 N.W.2d at 925: "As Strickland reminds
us, there is a 'wide range of professionally
competent assistance,' id., 466 U.S. at 690, 104 S.
Ct. 2052, and the bar is not very high, see
Yarborough v. Gentry, 540 U.S. 1, 11, 124 S. Ct. 1,
157 L. Ed. 2d 1 (2003) (lawyer need not be a
Clarence Darrow to survive an ineffectiveness
contention)." '
"State v. Marks, 330 Wis. 2d 693, 706-08, 794 N.W. 2d 547,
554-55 (Wis. Ct. App. 2010)."
State v. Lewis, ___ So. 3d at ___.
Largin is due no relief on this claim.
II. SUMMARILY DISMISSED CLAIMS
The circuit court summarily dismissed the rest of Largin's
ineffectiveness claims as insufficiently pleaded or lacking merit. Largin
argues that, in doing so, the circuit court abused its discretion. We
address Largin's arguments in turn.
A.
In claim I.A.2., Largin alleged that his trial counsel did not
investigate his "history of traumatic brain injury and headaches."
(Largin's brief, p. 51.) In support of this claim, Largin alleged that he
"has a long medical history of traumatic brain injuries and headaches";
that he told "counsel about this history and problems"; and that his trial
53
CR-20-0228
counsel did not investigate "into head injuries that could have caused
brain damage." (C. 74-75.) Largin alleged that, as a toddler, "he was
involved in a car wreck," his "head flew into the dashboard and split it
open," and he was treated for his injuries at DCH Regional Medical
Center in Tuscaloosa. (C. 75.) He alleged that he was involved in another
car wreck as a junior in high school, that his head was "split open" when
he "collided with the front passenger window," and that he received
treatment at DCH for that injury also. (C. 75.) Largin alleged that he
"suffered head injuries" while playing football; that at age 22, he "began
suffering crippling headaches … that would begin late in the day and
grow until the point that he could hardly function later in the evening";
that "[f]or years [he] was treated by Dr. Robert Ford, a board-certified
neurologist, of the Ford Headache Clinic in Birmingham," who "learned
that blood was not flowing evenly to both hemispheres of Mr. Largin's
brain"; and that "Dr. Ford prescribed Lortabs to help Mr. Largin with the
pain and Xanax to help him sleep." (C. 75-76.) Largin alleged that his
"[t]rial counsel completely failed to investigate how Mr. Largin's repeated
and severe head injuries might affect his mental functioning" and
"completely failed to investigate Mr. Largin's history with extreme
54
CR-20-0228
headaches." (C. 76.) Largin alleged that "[a]ll of these medical records
would have been available through DCH Regional Hospital in Tuscaloosa
or through the Ford Headache Clinic in Birmingham." (C. 76-77.) Largin
alleged that because his trial counsel did not "investigate Mr. Largin's
traumatic brain injury, the jury was erroneously informed that Mr.
Largin had no organic brain damage." (C. 77.)
Citing the pleading requirements of Rule 32 and this Court's
decision in McMillan v. State, 258 So. 3d 1154, 1178 (Ala. Crim. App.
2017), the circuit court denied this claim as insufficiently pleaded. The
court found: "Largin does not assert that he has ever been diagnosed with
organic brain damage despite alleging that he had received treatment 'for
years' from neurologist Dr. Robert Ford. Moreover, neither the
psychologist who perform[ed] Largin's court-ordered competency
evaluation nor Dr. Salekin recommended further testing." 10 (C. 611.)
10The report from the competency evaluation noted that Largin did
not report "any significant developmental or medical problems arising
during his early childhood" but did disclose "a limited history of a motor
vehicle accident" that "required stitches/sutures to close the wound," as
well as possible concussions and "headache issues." Largin "denied any
additional history of seizure, blackout, fainting, or vertigo." (Trial C. 392.)
Dr. Salekin testified that she reviewed Largin's psychological and
medical records, including records from North Harbor, Indian Rivers
55
CR-20-0228
In McMillan, the circuit court summarily dismissed McMillan's
claim that "his trial counsel should have investigated and presented
evidence that he suffered from fetal alcohol syndrome and a traumatic
brain injury." 258 So. 3d at 1177. The circuit court stated, in part:
" 'Based on the record before this Court, McMillan cannot
prevail even if the facts in his amended petition are taken as
true. Trial counsel obtained records, spoke to family members,
hired a mitigation investigator, obtained the services of Dr.
Ackerson [a board-certified forensic psychologist], spoke to a
former social worker who knew McMillan during his time
with DHR and obtained the benefit of a court-ordered
evaluation. The penalty phase of trial shows that a great deal
of effort went into preparing for the penalty phase and
crafting an appropriate strategy. Trial counsel's performance
in this matter was within the level of reasonable performance
that is required by Strickland [v. Washington, 466 U.S. 668(1984)].... The petition does not uncover the existence of
documents which went undiscovered by trial counsel or that
clearly document the existence of medical conditions that
were overlooked by defense counsel. Instead, McMillan
asserts his defense team should have been more creative in
coming up with new diagnosis previously unmade during his
life. Such a claim, in this case, does not constitute
ineffectiveness under either prong of the Strickland analysis.
As such, this claim is dismissed.' "
258 So. 3d at 1178 (quoting the circuit court's order). In affirming the
summary dismissal of this claim, this Court stated:
"McMillan's entire pleading on this claim is based on
Crisis Stabilization Unit, Bryce Hospital, and Serenity Care, Inc. (Trial
R. 2308, 2344, 2346.)
56
CR-20-0228
speculation. McMillan did not plead in either his original
petition or his amended petition that he actually suffered
from fetal alcohol syndrome or that he had been diagnosed
with traumatic brain injury. Indeed, the entire argument is
premised on the fact that counsel 'should have investigated'
and 'might have found' that McMillan suffered from those
conditions. '[B]y presenting pure speculation and failing to
plead any specific facts regarding [this issue] ... [the
appellant] failed to plead facts supporting a general claim of
prejudice.' Morris v. State, [261] So. 3d [1181, 1192] (Ala.
Crim. App. 2016). 'Ineffective assistance of counsel claims are
not built on retrospective speculation ....' Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002). 'It is well established
that, in a claim of ineffective assistance of counsel, "[m]ere
conjecture and speculation are not enough to support a
showing of prejudice." ' Elsey v. Commissioner of Corr., 126
Conn. App. 144, 166, 10 A.3d 578, 593 (2011) (citation
omitted). This circuit court properly dismissed this claim
because no material issue of law or fact exists that would
entitle McMillan to relief. See Rule 32.7(d), Ala. R. Crim. P."
258 So. 3d at 1178-79. On appeal, Largin does not address McMillan; he
merely asserts that the circuit court was wrong in its conclusion. This
does not satisfy Rule 28(a)(10), Ala. R. App. P., which requires that an
argument include "the contentions of the appellant/petitioner with
respect to the issues presented, and the reasons therefor, with citations
to the cases, statutes, other authorities, and parts of the record relied on."
" ' "It is not the function of this Court to .... to make and address legal
arguments for a party based on undelineated general propositions not
supported by sufficient authority or argument." ' " Ex parte Borden, 60
57
CR-20-0228
So. 3d 940, 943 (Ala. 2007) (quoting Butler v. Town of Argo, 871 So. 2d 1,
20 (Ala. 2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So. 2d
248, 251 (Ala. 1994)).
Largin did not sufficiently plead this claim, and the circuit court did
not err in summarily dismissing it. See, e.g., McMillan, supra.B.
In claim I.A.3., Largin alleged that "[t]rial counsel was ineffective
for failing to seek funds to hire an expert to explain the mitigating effects
of Mr. Largin's brain injuries." (C. 77.) Largin alleged that "it is likely
that Mr. Largin has organic brain damage of which the sentencer was not
informed." (C. 78.) Largin alleged that "[b]ecause of the trial attorney's
failed investigation and failure to obtain the appropriate expert, the
sentencer was denied the opportunity to hear that Mr. Largin was in two
serious car accidents when he was younger, suffered head injuries
because of the accidents, and suffered from extreme headaches stemming
from reduced blood flow within his brain," and "[t]he sentencer never got
to hear from a neuropsychologist or neurologist about the effects of
traumatic brain injury or the headaches, or to see the results of a scan to
determine exactly what type of brain damage occurred." (C. 79.) Citing
58
CR-20-0228
the pleading requirements of Rule 32 and Lee v. State, 44 So. 3d 1145,
1166-67 (Ala. Crim. App. 2009), the circuit court summarily dismissed
this claim as insufficiently pleaded because Largin did "not identify an
expert by name or explain the content of that expert's expected
testimony." (C. 611.) In Lee, this Court stated: " 'We have held that a
petitioner fails to meet the specificity requirements of Rule 32.6(b), Ala.
R. Crim. P., when the petitioner fails to identify an expert by name or
plead the contents of that expert's expected testimony.' " 44 So. 3d at
1166-67 (quoting Smith v. State, 71 So. 3d 12, 33 (Ala. Crim. App. 2008),
overruled on other grounds by Ex parte Lane, 286 So. 3d 61 (Ala. 2018)).
On appeal, Largin does not address Lee; he merely asserts that he
sufficiently pleaded his claim. This does not satisfy Rule 28(a)(10), Ala.
R. App. P.
Largin did not sufficiently plead this claim, and summary dismissal
was proper. See, e.g., Lee, supra; Jackson v. State, 133 So. 3d 420, 452
(Ala. Crim. App. 2009).
C.
In claim I.A.4., Largin alleged that his counsel "could have obtained
funds to hire a neuropharmacologist to testify about the relationship
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between his brain damage and his known drug use." (C. 80.) Largin
alleged that he had "used drugs throughout his life" and that "[a]
neuropharmacologist would have been able to explain to the jury the
interplay between Mr. Largin's organic brain issues and the drugs he was
using around the time of the offense." (C. 80.) Largin alleges that his
counsel's failure to hire a neuropharmacologist "denied [the sentencer]
the opportunity to consider the way that substances chemically altered
Mr. Largin's brain on the night of the crime." (C. 81.)
For the same reasons it dismissed claim I.A.3., the circuit court
summarily dismissed this claim as insufficiently pleaded. (C. 612.) On
appeal, Largin does not address the circuit court's reasoning, other than
asserting that he sufficiently pleaded his claim. He did not. See, e.g., Lee,
supra; Jackson, supra.D.
In claim I.B.1., Largin alleged that his trial counsel should have
objected to testimony from Lt. John Arnold, Sgt. John Nabors, and Paul
McNutt about Largin's demeanor after he was arrested. (C. 100.) Largin
alleged that their testimony and a comment about his testimony during
the State's rebuttal violated Ex parte Marek, 556 So. 2d 375 (Ala. 1989).
60
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On direct appeal, this Court found no plain error in the admission
of this evidence:
"Largin argues that the trial court erred when it
permitted two officers [Lt. John Arnold and Sgt. John Nabors]
to testify about his demeanor at the time of his arrest,
specifically, that, when he was taken into custody, he did not
appear to be very surprised, he did not protest, and he did not
ask the reason for his detention. He further argues that the
trial court erred when it permitted Paul McNutt to testify that
after he and Largin were taken into custody when they came
out of the apartment, he heard the word 'homicide' over a
police radio, and he assumed Largin heard it, but he did not
observe any reaction from Largin. According to Largin, this
testimony—and the prosecutor's comment on the testimony
during rebuttal closing argument—was a violation of Ex parte
Marek, 556 So. 2d 375 (Ala. 1989), which abolished the tacit-
admission rule in pre-arrest situations.
"….
"The Marek Court stated that a tacit admission
" 'is made when "a statement incriminating [the]
accused or charging him with crime is made in his
presence and hearing, under circumstances
naturally calling for a reply or denial, and he has
full liberty to speak"; in such a case "his silence or
failure to reply or deny is admissible in evidence
as an admission of the statement or accusation;
where, on being accused of crime, with full liberty
to speak, one remains silent, his failure to reply or
to deny is relevant as tending to show his guilt."
22A C.J.S. Criminal Law, § 734(1) at 1068-69
(1961). (Footnotes omitted.)'
61
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"556 So. 2d at 379.
"As the Court made clear in Marek, a statement
incriminating the accused or charging him with crime 'under
circumstances naturally calling for a reply or denial' is a
necessary predicate to a tacit admission. None of the
testimony to which Largin now objects involved such a
statement. Therefore, there was no tacit admission.
Alexander v. State, 601 So. 2d 1130, 1132 (Ala. Crim. App.
1992). Because there was no tacit admission, the prosecutor's
reference to that testimony in rebuttal closing argument did
not violate the prohibition against tacit-admission testimony.
"Furthermore, no error resulted from that testimony
because evidence of a defendant's demeanor before or after the
offense is admissible at trial. E.g., Pressley v. State, 770 So.
2d 115 (Ala. Crim. App. 1999); Lowe v. State, 627 So. 2d 1127(Ala. Crim. App. 1993); Sheridan v. State, 591 So. 2d 129 (Ala.
Crim. App. 1991). Likewise, because the testimony was
properly admitted, the prosecutor's reference to that
testimony in closing argument was not error. Alexander, 601
So. 2d at 1132."
Largin, 233 So. 3d at 397-98.
In Woodward v. State, 276 So. 3d 713, 768-69 (Ala. Crim. App.
2018), the circuit court rejected a petitioner's claim that his counsel was
ineffective for not objecting to certain testimony. The circuit court relied
on this Court's holding in the petitioner's direct appeal that the
underlying claim had no merit. On appeal, the petitioner argued "that
the circuit court's finding that claim was meritless because it was rejected
by this Court on direct appeal" conflicted with Ex parte Taylor, 10 So. 3d
62CR-20-0228
1075 (Ala. 2005). This Court disagreed:
"In Ex parte Taylor, the Alabama Supreme Court held that 'a
determination on direct appeal that there has been no plain
error does not automatically foreclose a determination of the
existence of the prejudice required under Strickland to
sustain a claim of ineffective assistance of counsel.' 10 So. 3d
at 1078. However, Ex parte Taylor applies only to the
prejudice prong of Strickland, not to the deficient-
performance prong. See Clark v. State, 196 So. 3d 285, 311 n.4
(Ala. Crim. App. 2015). Because this Court's holding on direct
appeal establishes that counsel's performance was not
deficient, Ex parte Taylor is inapplicable."
Woodward, 276 So. 3d at 769.
Relying on that principle from Woodward and citing this Court's
holding on direct appeal in Largin that there was no tacit admission and
thus no violation of Marek, the circuit court summarily dismissed this
claim. (C. 612-13.) On appeal, Largin does not address Woodward or this
Court's holding in Largin that there was no tacit admission and thus no
violation of Marek, nor does he address the circuit court's reliance on that
holding in Largin. This Court's holding in Largin refutes the claim on
which Largin bases his argument that his counsel's performance was
deficient. Because there was no tacit admission, counsel's failure to object
was not deficient performance. See, e.g., Carruth v. State, 165 So. 3d 627,
641 (Ala. Crim. App. 2014) (counsel is not ineffective for failing to raise a
63
CR-20-0228
meritless objection); Yeomans v. State, 195 So. 3d 1018, 1034 (Ala. Crim.
App. 2013) ("[B]ecause there is no merit to the legal theory underlying
this claim of ineffective assistance, the claim was properly dismissed.").
Largin is due no relief on this claim.
E.
In claim I.B.2., Largin alleged that counsel should have objected to
evidence of "prior bad acts." (Largin's brief, p. 62.) Largin alleged four
"different issues under [Rule] 404(b)," Ala. R. Evid., in which he says
counsel was ineffective: (1) for not objecting to "George McShan's
testimony that Largin made statements about committing other murders
(Trial R. 1538)"; (2) for not objecting to "numerous instances of Rule
404(b) evidence about Largin being prone to anger, violence, and bizarre
behavior (Trial R. 833-44; 885; 886-87; 945; 985; 1017-19; 1111; 1115;
1126-34; 1196)"; (3) for not objecting to "the lack of notice from the State
regarding Rule 404(b) evidence"; and (4) for not "request[ing] a limiting
instruction regarding the Rule 404(b) evidence presented by the State."
(Largin's brief, p. 63.)
The Rule 32 court summarily dismissed this claim. (C. 613.) The
court found:
64
CR-20-0228
"[T]hese underlying substantive claims were subjected to
plain-error review. Largin, 233 So. 3d at 398. There, Largin
argued that testimony from McShan regarding Largin's
statement about two additional murders, testimony of his
'extensive history of drug abuse and some of the behaviors he
exhibited as a result of his drug abuse,' and the trial court's
failure to give a limiting instruction on either resulted in
reversible error. Id. In each instance, the appellate court held
that no error, let alone plain error, occurred. Id. at 399-401.
Thus, this claim is summarily dismissed because Largin has
not pleaded facts sufficient to show that counsel's failure to
raise these objections resulted in deficient performance.
Woodward, 276 So. 3d at 769."
(C. 613.)
On appeal, Largin does not address Woodward or this Court's
holdings on direct appeal about the evidence to which he alleges his
counsel should have objected. Largin's complete argument in support of
the above issues is:
"Had counsel objected, the circuit court would have
excluded or severely limited any Rule 404(b) evidence and
issued instructions to the jury regarding the proper uses and
limitations of this evidence. But counsel failed to do so.
Because counsel failed to do so, counsel performance [sic]
deficiently in a manner that prejudiced Largin with the jury.
"In his petition, Largin satisfied th[e] pleading
requirements of Rules 32.3 and 32.6(b) and Hyde. Largin’s
petition detailed facts that, if true, would entitle Largin to
relief on this claim. Hyde, 950 So. 2d at 356. Therefore, this
Court should reverse the circuit court’s summary dismissal of
claim [I.B.2.] and remand for further proceedings."
65
CR-20-0228
(Largin's brief, p. 64.) This argument does not comply with Rule
28(a)(10), Ala. R. App. P. See, e.g., Ex parte Borden, 60 So. 3d at 943;
Egbuonu v. State, 993 So. 2d 35, 38-39 (Ala. Crim. App. 2007)
(" 'Recitation of allegations without citation to any legal authority and
without adequate recitation of the facts relied upon has been deemed a
waiver of the arguments listed.' Hamm v. State, 913 So. 2d 460, 486 (Ala.
Crim. App. 2002). 'Authority supporting only "general propositions of
law" does not constitute a sufficient argument for reversal.' Beachcroft
Props., LLP v. City of Alabaster, 901 So. 2d 703, 708 (Ala. 2004), quoting
Geisenhoff v. Geisenhoff, 693 So. 2d 489, 491 (Ala. Civ. App. 1997).").
Merely listing issues without further explanation does not comply with
Rule 28(a)(10). Morris v. State, 261 So. 3d 1181, 1198 (Ala. Crim. App.
2016) ("[The appellant] has provided no recitation of the facts relied upon
in support of his argument; he merely refers to the record without setting
forth any facts regarding why he believes he was entitled to relief.
'[M]erely referring to the record without setting forth the facts in support
of an argument is not sufficient to comply with Rule 28(a)(10), Ala. R.
App. P.' L.J.K. v. State, 942 So. 2d 854, 868 (Ala. Crim. App. 2005).").
Except for the claim about the alleged lack of notice, this Court on
66
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direct appeal addressed the issues on which Largin bases these
ineffectiveness claims and held that they lacked merit. Largin, 233 So.
3d at 398-401. Largin has not addressed these holdings, and we will not
repeat them here. But those holdings show he is due no relief on those
issues. See, e.g., Carruth, 165 So. 3d at 641. See also McNabb v. State,
991 So. 2d 313, 326 (Ala. Crim. App. 2007) ("Here, in our opinion on
return to remand in McNabb's direct appeal, this Court noted that we
found 'no error, plain or otherwise, in the guilt phase of the proceedings
....' McNabb [v. State], 887 So. 2d [929,] 990 [(Ala. Crim. App. 2001)]
(emphasis added). Thus, we did not limit our findings to the lack of plain
error, but rather we found no error, a finding which includes a preserved-
error review.").
As for his claim about the State not giving notice of its intent to use
Rule 404(b) evidence, Largin did not identify what evidence was admitted
without notice or explain how the alleged lack of notice for such evidence
prejudiced his case. Thus, he did not sufficiently plead the claim.
F.
In claim I.B.3., Largin alleged that his counsel were ineffective for
not raising "proper challenges during jury selection." (Largin's brief, p.
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CR-20-0228
64.) He argues that "[c]ounsel should have more effectively argued that
the State used its peremptory strikes in a discriminatory manner in
violation of J.E.B. v. Alabama, 511 U.S. 127 (1994), and Batson v.
Kentucky, 476 U.S. 79 (1986)." (Largin's brief, pp. 64-65.)
The circuit court, in summarily dismissing this claim, noted:
"[Largin] asserts that counsel should have argued that [76]
percent of the prosecution's strikes were improperly used to
remove women solely based on gender and alleges that this
Court 'would have found a prima facie case of discrimination
and forced the prosecution to give gender-neutral reasons for
its strikes.' "
(C. 614.) The circuit court dismissed the claim as insufficiently pleaded
based on this Court's rejection of the underlying claim on direct appeal,
in which we stated:
"Largin argues that the large number of peremptory strikes
exercised against women was indicative of a gender bias that
establishes a prima facie case of discrimination. He states: 'A
defendant can establish a prima facie J.E.B. claim solely on
the fact that a prosecutor used a large number of peremptory
challenges to strike female prospective jurors.' (Largin's brief,
at pp. 45-46.) Largin is incorrect. This Court repeatedly has
held that a prima facie case of discrimination under Batson
cannot be established by numbers alone. E.g., Luong v. State,
199 So. 3d 173 (Ala. Crim. App. 2015), and cases cited therein.
Furthermore, the fact that 6 of the 12 jurors and that both
alternate jurors were women must be taken into account
when considering whether the State exercised its peremptory
challenges in a discriminatory manner, because it indicates
that the State did not use all of its peremptory challenges to
68
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exclude women from the jury. The State's use of 22 of 29
strikes against female veniremembers does not raise an
inference of discrimination."
Largin, 233 So. 3d at 403.
On appeal, Largin does not address that holding in Largin. This
Court's holding in Largin shows that the claim underlying the allegation
of ineffectiveness lacks merit. Thus, Largin is due no relief. See, e.g.,
Carruth, 165 So. 3d at 641.
G.
In claim I.B.4., Largin alleged that his counsel should have sought
funds to retain an expert to assist with jury selection. (C. 116.) Largin
alleged that his "trial utilized a large potential venire and an expert was
clearly needed to adequately challenge the State's peremptory strikes …
and to ensure the fairness and impartiality of the jury." (C. 117.) He
asserted that "[c]ounsel simply was not prepared and equip[ped] to
analyze the juror questionnaires … and conduct a thorough voir dire to
ensure the empaneled jurors would all consider his case fairly and fully."
(C. 117.)
In summarily dismissing this claim, the circuit court found:
"The record on direct appeal refutes this claim and shows that
counsel did, in fact, request and obtain funds for a juror
69
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consultant. (Trial C. 287-92.) Moreover, Largin does not
identify the expert whom trial counsel should have retained
or explain how this consultant would have affected the jury
selection process. As such, this claim is summarily dismissed
as insufficiently pleaded."
(C. 614.) On appeal, Largin does not address the circuit court's findings.
He merely reiterates the allegations he made in his petition and asserts
that the claim was sufficiently pleaded. The circuit court did not err in
summarily dismissing this claim. See, e.g., Lee, 44 So. 3d 1166-67. See
also McNabb v. State, 991 So. 2d 313, 320 (Ala. Crim. App. 2007)
("[B]ecause this claim was clearly refuted by the record, summary denial
was proper pursuant to Rule 32.7(d), Ala. R. Crim. P. See Duncan v.
State, 925 So. 2d 245 (Ala. Crim. App. 2005) (adopting trial court's
findings that summary dismissal of petition was proper where the claims
were refuted by the record on direct appeal).").
H.
In claim I.B.5., Largin alleged that his "counsel failed to object to
the introduction of highly inflammatory victim-impact evidence during
the [guilt] phase." (C. 118.) He alleged that "counsel allowed the State
to elicit powerful victim-impact testimony from Sheri Largin Lake … and
[from inmate] George McShan." (C. 118.) Sheri testified that “as a result
70
CR-20-0228
of what [she] saw that night" that she found her parents' bodies, she had
been seeing a therapist and had been diagnosed with "post-traumatic
stress disorder and depression." (Trial R. 900.) She also testified that her
therapist had advised her not to testify. (Trial R. 900-01.) McShan
testified that part of his motivation for testifying against Largin was his
sympathy for Sheri. (Trial R. 1543.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded because it did not include "any factual
allegation to suggest that this testimony influenced the jury's decision or
explain how the outcome of his case would have been different if counsel
had raised an objection." (C. 615.) The circuit court also cited this Court's
rejection of the underlying claim on direct appeal, in which we found no
plain error:
"Largin next argues that the trial court erred when it
admitted victim-impact evidence during the guilt phase of
trial. Specifically, he argues that Largin's sister, Sheri,
impermissibly testified that she had a young son and as to the
effect the victims' deaths had on her and her son, including
her treatment by a therapist for post-traumatic stress
disorder and the identification of her therapist, who was in
the courtroom. Largin further argues that the trial court erred
when it permitted inmate George McShan to testify that he
broke the inmates' 'code of silence' and testified against
Largin at least in part because he felt sorry for Sheri. He
argues that his conviction should be reversed because the
71
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testimony had no purpose except to encourage jurors to
identify with Sheri in her grief and to bias the jurors against
him.
"While the State was questioning Sheri about her
observations at the crime scene when she arrived at her
parents' house to check on them, Sheri testified that she saw
blood on the floor. The State said it would not show her any
photographs of what she saw on the floor and asked whether
she had asked that she not be shown any photographs. Sheri
confirmed that. The State then asked whether she was seeing
a therapist as a result of what she saw that night, and she
said she had been diagnosed with post-traumatic stress
disorder and depression, that she was seeing a therapist, and
that she was testifying against the therapist's advice. Because
the State was not going to show Sheri available photographs
of the crime scene to corroborate her testimony about her
observations, her testimony about seeing a therapist provided
an explanation for that. Therefore, the testimony was
relevant and was not victim-impact testimony, and its
admission was not in error. Even if that portion of Sheri's
testimony could be considered irrelevant victim-impact
testimony, its admission would not constitute plain error. The
admission of victim-impact evidence during the guilt phase of
a capital-murder trial may be harmless under Rule 45, Ala. R.
App. P. E.g., Russell v. State, [261] So. 3d [397,] [422] (Ala.
Crim. App. 2015)[, judgment vacated on other grounds, 137 S.
Ct. 158 (2016)].
" 'It is presumed that jurors do not leave their
common sense at the courthouse door. It would
elevate form over substance for us to hold, based
on the record before us, that [the appellant] did not
receive a fair trial simply because the jurors were
told what they probably had already suspected—
that [the victim] was not a "human island," but a
unique individual whose murder had inevitably
had a profound impact on her children, spouse,
72
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parents, friends, or dependents (paraphrasing a
portion of Justice Souter's opinion concurring in
the judgment in Payne v. Tennessee, 501 U.S. 808,
838 (1991)).'
"Ex parte Rieber, 663 So. 2d 999, 1006 (Ala. 1995).
"We have examined the record as a whole and we cannot
conclude that Sheri's brief testimony about her diagnosis and
about seeing a therapist 'probably distracted the jury and
kept it from performing its duty of determining the guilt or
innocence of the defendant based on the admissible evidence
and the applicable law.' Ex parte Rieber, 663 So. 2d at 1006.
The record shows that the admission of this portion of Sheri's
testimony was brief and that it did not deprive Largin of a fair
trial or otherwise prejudice any of his substantial rights.
Furthermore, the trial court instructed the jury repeatedly
that it must base its decision solely on the evidence and the
law, and that it must not … permit emotion, sympathy, or
prejudice to influence its verdict. 'It is well settled that jurors
are presumed to follow, not disregard, the trial court's
instructions.' Brooks v. State, 973 So. 2d 380, 409 (Ala. Crim.
App. 2007). Therefore, even if Sheri's testimony about her
diagnosis and treatment was admitted in error, the error
would not rise to the level of plain error.
"….
"Largin argues that the trial court erred when it
permitted George McShan to testify that his sympathy for
Sheri was his primary motivation for testifying. He further
argues that the trial court then highlighted this emotional
connection by permitting the State to introduce McShan to
Sheri while McShan was on the witness stand. We review
these arguments for plain error only, because Largin did not
raise these objections at trial. McShan testified that he
identified with Sheri because, he said, 'I put myself in her
place when I lost my father. See, my father was killed....
73
CR-20-0228
That's when my life started going downhill.' (R. 1543.) Even if
that portion of McShan's testimony and the introduction of
Sheri to McShan were irrelevant, our review of the entire
record clearly demonstrates that these events did not have an
unfair prejudicial impact on the jury's deliberations or
otherwise prejudice his substantial rights. The testimony and
introduction were brief and innocuous. Moreover, the jurors
were instructed that their verdict must be based on the
evidence and the law, and not emotion, sympathy, or
prejudice, and jurors are presumed to follow the trial court's
instructions."
Largin, 233 So. 3d at 411-13.
On appeal, Largin does not address these holdings in Largin. This
Court's opinion in Largin shows that the claims underlying the allegation
of ineffectiveness lack merit. The circuit court did not err in summarily
dismissing this claim, and Largin is due no relief. See, e.g., Carruth, 165
So. 3d at 641.
I.
In claim I.B.6., Largin alleged that his trial counsel were
"ineffective for failing to object to several instances of prosecutorial
misconduct during the guilt phase of trial." (C. 121.) He alleged that
counsel should have objected when:
(1) "[T]he prosecutor made improper comments during voir dire
by repeatedly injecting himself personally into the case
through statements such as 'I'm trying to use our system of
justice to kill this man.' " (C. 121, quoting Trial R. 643-44.)
74
CR-20-0228
(2) "[T]he prosecutor also presented to the venire an extended,
graphic, and improper account of how chickens are killed in a
barnyard with the bare hands. This unnecessary statement
served to dehumanize the defendant and inflame the passions
of the jury by comparing the situation of a capital juror to one
who is asked to kill an animal." (C. 122, citing Trial R. 654,
658-59.)
(3) "[T]he prosecutor elicited improper testimony from jailhouse
informant George McShan about a supposed 'code of silence'
among prison inmates and the fact that McShan was breaking
this supposed code because (1) Mr. Largin's act of killing his
parents was beyond the pale even among prisoners; and (2)
McShan was offended that Mr. Largin would try to blame his
sister for the crime. …" (C. 122, citing Trial R. 152-44.)
(4) "[T]he prosecutor improperly exhorted the jury to do its 'job'
by delivering justice for the victims." (C. 123, citing Trial R.
866.)
(5) "[T]he prosecutor's closing arguments improperly inflamed
the passions of the jurors and encouraged them to reach a
verdict based on sympathy and emotion. The prosecutor
began by focusing his argument on the special status of the
victims as parents and on the idea that Mr. Largin 'repaid' his
parents for raising him and supporting him by killing them."
(C. 123, citing Trial R. 2018-19.)11
The circuit court summarily dismissed this claim, finding that it
11Largin also alleged that counsel should have objected to the
statement, "at the close of [the State's] rebuttal argument," that the
jurors should "do justice for the victims' daughter, Sheri Largin Lake, as
well as for the victims themselves." (C. 124, citing Trial R. 2075.) Largin
abandoned this claim on appeal.
75
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was insufficiently pleaded and that it lacked merit. (C. 615-16.) The
circuit court cited this Court's rejection of the underlying claim on direct
appeal in which this Court addressed each of the issues on which Largin
bases this ineffectiveness claim and held that those issues lacked merit.
Largin, 233 So. 3d at 413-18. Largin has not addressed these holdings,
and we will not repeat them here. But those holdings show that he is due
no relief on this claim. See, e.g., Carruth, 165 So. 3d at 641.
Largin also argues on appeal that the alleged "improper comments
and arguments … cumulatively denied Largin his rights" and that
counsel was ineffective for not objecting to those comments and
arguments. In Woodward, we stated:
" ' "[T]his Court has noted: 'Other states and federal courts are
not in agreement as to whether the "cumulative effect"
analysis applies to Strickland claims'; this Court has also
stated: 'We can find no case where Alabama appellate courts
have applied the cumulative-effect analysis to claims of
ineffective assistance of counsel.' Brooks v. State, 929 So. 2d
491, 514 (Ala. Crim. App. 2005) …; see also McNabb v. State,
991 So. 2d 313, 332 (Ala. Crim. App. 2007); and Hunt v. State,
940 So. 2d 1041, 1071 (Ala. Crim. App. 2005). More to the
point, however, is the fact that even when a cumulative-effect
analysis is considered, only claims that are properly pleaded
and not otherwise due to be summarily dismissed are
considered in that analysis. A cumulative-effect analysis does
not eliminate the pleading requirements established in Rule
32, Ala. R. Crim. P. An analysis of claims of ineffective
assistance of counsel, including a cumulative-effect analysis,
76
CR-20-0228
is performed only on properly pleaded claims that are not
summarily dismissed for pleading deficiencies or on
procedural grounds. Therefore, even if a cumulative-effect
analysis were required by Alabama law, that factor would not
eliminate [the petitioner's] obligation to plead each claim of
ineffective assistance of counsel in compliance with the
directives of Rule 32." ' "
Woodward, 276 So. 3d at 742 (quoting Bryant v. State, 181 So. 3d 1087,
1104 (Ala. Crim. App. 2011), quoting in turn Taylor v. State, 157 So. 3d
131, 140 (Ala. Crim. App. 2010)).
The circuit court found that "there was … no cumulative error
based on these claims" because each of the underlying claims lacked
merit. (C. 615.) Thus, even under a cumulative-error analysis, Largin
would be due no relief. See, e.g., Wiggins v. State, 193 So. 3d 765, 813
(Ala. Crim. App. 2014) (holding that, because there was no error in any
of the specific instances of alleged prosecutorial misconduct, there could
be no cumulative error).
J.
In claim I.B.7., Largin alleged that his trial counsel were
"ineffective for failing to fully and properly object to the State's
impeachment of Ernie Tubbs." (C. 125.) Largin alleged that "[t]he trial
court allowed the State to cross-examine defense witness Ernie Tubbs on
77
CR-20-0228
the basis of mere charges, on the theory that these charges were relevant
to establish a bias against the State as the prosecuting entity." (C. 125.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded and that it lacked merit. (C. 616.) The circuit
court cited this Court's rejection of the underlying claim on direct appeal
in which this Court found no error or plain error in the State's cross-
examination of Tubbs:
"Before Largin called Tubbs to testify, Tubbs's attorney
informed the court that he would object to any questions
regarding the pending charges. The State informed the court
that it was actively prosecuting Tubbs for rape and for failing
to comply with requirements of the community-notification
act, but that it would not ask Tubbs about the facts of those
cases. The trial court agreed that the State could ask Tubbs
whether he had pending charges, and Largin stated that he
had no objections. Thereafter, in response to Largin's
questions on direct examination, Tubbs testified that he was
residing in the county jail and that he had been charged with
failing to register as a sex offender, domestic violence,
sodomy, and rape. During cross-examination, the State
confirmed the charges pending against Tubbs.
" 'If error occurred it was invited by defense counsel.
Invited error applies to death-penalty cases and operates to
waive the error unless "it rises to the level of plain error." Ex
parte Bankhead, 585 So. 2d 112, 126 (Ala. 1991).' Gobble v.
State, 104 So. 3d 920, 945 (Ala. Crim. App. 2010). Largin did
not raise this claim of error in the trial court and, in fact, he
questioned Tubbs about the charges. As a result, we review
for plain error only.
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CR-20-0228
"The trial court has substantial discretion in
determining the scope of cross-examination. E.g., Albarran v.
State, 96 So. 3d 131, 165 (Ala. Crim. App. 2011). Rule 616,
Ala. R. Evid., states, 'A party may attack the credibility of a
witness by presenting evidence that the witness has a bias or
prejudice for or against a party to the case or that the witness
has an interest in the case.' In Williams v. State, 710 So. 2d
1276, 1298 (Ala. Crim. App. 1996), we stated that '[i]t is
always permissible to cross-examine a witness to ascertain his
or her interest, bias, prejudice, or partiality concerning
matters about which he or she is testifying, and generally
anything that tends to show the witness's bias,
unfriendliness, enmity, or inclination to swear against a
party, is admissible.' The pending charges against Tubbs for
failing to register as a sex offender, domestic violence,
sodomy, and rape and his incarceration in the county jail
would reasonably give rise to the inference that Tubbs had a
bias against the State. Therefore, the trial court committed no
error or plain error when it permitted the State to cross-
examine Tubbs and confirm the evidence Largin had elicited
on direct examination."
Largin, 233 So. 3d at 429.
On appeal, Largin does not address this holding in Largin. This
Court's holding in Largin shows that the claim underlying the allegation
of ineffectiveness lacks merit. Thus, Largin is due no relief. See, e.g.,
Carruth, 165 So. 3d at 641.
K.
In claim I.B.8., Largin alleged that his trial counsel were
"ineffective at numerous points when counsel failed to object to the State
79
CR-20-0228
introducing testimony that Mr. Largin lacked remorse." (C. 126-27.) The
petition cited testimony from Investigator Miller, George McShan, and
Jill Wortham. (C. 127-28.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded and that it lacked merit. (C. 617.) The circuit
court cited this Court's rejection of the underlying claim on direct appeal
in which this Court found no plain error in the admission of the
testimony. Largin, 233 So. 3d at 426-27, 431.
On appeal, Largin challenges the circuit court's denial of this claim,
but he does not identify any specific testimony or provide this Court with
any citations to the record. This does not comply with Rule 28(a)(10),
Ala. R. App. P. Largin also does not address this Court's holding in Largin
that the claim underlying the allegation of ineffectiveness lacks merit.
Thus, Largin is due no relief. See, e.g., Carruth, 165 So. 3d at 641.
L.
In claim I.B.9., Largin alleged that his trial counsel were
"ineffective for failing to challenge the ways in which the State bolstered
Sheri Largin Lake's testimony at trial." (C. 129.) Largin asserted that
"the court allowed improper refreshing of recollection and leading
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CR-20-0228
testimony" and that Sheri "was allowed numerous times to testify to
hearsay and make statements without any foundation, improperly
increasing the impact of her testimony." (C. 129.) Largin alleged that the
State improperly used the transcript of Sheri's 911 call to refresh her
recollection, that the "prosecutor [led] Ms. Largin Lake to testify
precisely in conformance with indictment," and that Sheri "testified that
only she, her mother, and her father had keys to the house and that Mr.
Largin had never been given [a] key to [the] house." (C. 129.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded and that it lacked merit. (C. 618.) The circuit
court cited this Court's rejection of the underlying claim on direct appeal
in which this Court found that there was no plain error in the admission
of the testimony. Largin, 233 So. 3d at 432.
On direct appeal, this Court addressed the alleged error that
underlies this ineffectiveness claim:
"The State explained to the trial court its reason for
using the transcript of the 911 call during Sheri's testimony
and stated that it 'would offer to play the nine-one-one tape
again, interrupting it from time to time with other questions
for [Sheri], and provide copies to the jury so they can follow
along and not lose their place in the conversation.' (R. 904.)
The trial court permitted the transcripts to be used as a
demonstrative aid during the testimony, which did not have
81
CR-20-0228
the effect of bolstering Sheri's testimony, and the trial court
did not abuse its considerable discretion when it did so. E.g.,
Blanton v. State, 886 So. 2d 850, 868-69 (Ala. Crim. App.
2003). No plain error occurred.
"Largin's assertion that the trial court erred when it
permitted the State to question Sheri in conformance with the
indictment is meritless. The State had the burden of proving
Largin's guilt beyond a reasonable doubt. In fulfilling its
burden to prove its case, the State asked Sheri about items
from her parents' home that she had been asked to identify in
the months after the murders and which had been stolen
during the commission of the crimes. That testimony did not
bolster Sheri's credibility, and the trial court committed no
plain error when it allowed the testimony.
"There is no merit to Largin's final claim that the trial
court erred when it permitted Sheri to testify that, to her
knowledge, her parents had never given Largin a key to their
house. The testimony was based on her extensive personal
knowledge of her parents' behavior and was properly
admitted. The trial court did not abuse its discretion, and no
plain error occurred."
Largin, 233 So. 3d at 432.
On appeal, Largin challenges the circuit court's summary dismissal
of this claim, but he does not address this Court's holding in Largin that
the claim underlying the allegation of ineffectiveness lacks merit. He
merely asserts that trial counsel should have objected. Largin is due no
relief. See, e.g., Carruth, 165 So. 3d at 641.
M.
82
CR-20-0228
In claim I.B.10., Largin alleged that counsel was ineffective for not
objecting to testimony from "the State's expert DNA witness, April Leon,
… about testing of genetic material recovered from a metal mop handle
found in the victims' kitchen." (C. 130.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded and that it lacked merit. (C. 619.) The circuit
court cited this Court's rejection of the underlying claim on direct appeal
in which this Court found that there was no plain error in the admission
of the testimony. Largin, 233 So. 3d at 432-33.
On direct appeal, this Court addressed the alleged error that
underlies this ineffectiveness claim:
"Largin's next claim of error is that the trial court erred
when it allowed expert testimony about DNA evidence that
was, he says, irrelevant, confusing, and unfairly prejudicial to
him. Specifically, he argues that April Leon, a forensic
biologist in the Alabama Department of Forensic Sciences,
should not have been permitted to testify that the genetic
material recovered from the handle of the mop found in the
victims' kitchen was consistent with a mixture of Largin's and
his mother's DNA. He states that the testimony was improper
because, he says, with regard to another piece of evidence,
Leon had testified that she could not differentiate between
genetic material from Largin and from his father. We review
for plain error because Largin did not raise this claim in the
trial court.
"As we have stated repeatedly: 'The question of
83
CR-20-0228
admissibility of evidence is generally left to the discretion of
the trial court, and the trial court's determination on that
question will not be reversed except upon a clear showing of
abuse of discretion.' Ex parte Loggins, 771 So. 2d 1093, 1103
(Ala. 2000). The premise underlying Largin's argument is that
Leon should not have been able to testify that Largin's genetic
material was part of the DNA mixture on the mop handle
because, with regard to a sample of genetic material from
another piece of evidence—the muzzle of a gun, Leon testified
that she could not eliminate Largin as a source of the DNA
mixture based on the biological relationship between him and
his parents. Largin's premise is faulty. Leon testified that the
reason she could not eliminate Largin as a contributor to the
mixture of genetic material on the muzzle was that Peggy
Largin was the major contributor to the material in the
sample, and the amount of DNA from the minor contributor
was insufficient to eliminate Largin as the contributor.
Therefore, Leon was testifying about two distinct samples of
genetic material, and the inconclusive results regarding the
muzzle did not preclude testimony about the clear results she
found during her examination of the genetic material on the
mop handle.
"The testimony about the genetic material on the mop
handle was relevant, see Rule 401, Ala. R. Evid., because it
corroborated Largin's statement to the police and supported
the State's theory of the case by establishing that Largin had
tried to clean up the blood in the kitchen.
"Thus, the evidence was relevant and not unfairly
prejudicial, Leon did not overstate her conclusions, and there
was no plain error in the admission of the testimony."
Largin, 233 So. 3d at 432-33.
On appeal, Largin challenges the circuit court's summary dismissal
of this claim, but he does not address this Court's holding in Largin that
84
CR-20-0228
the claim underlying the allegation of ineffectiveness lacks merit. He
merely asserts that trial counsel should have objected and reiterates the
arguments that this Court rejected on direct appeal. Largin is due no
relief. See, e.g., Carruth, 165 So. 3d at 641.
N.
In claim I.B.11., Largin alleged that his trial counsel were
ineffective for not objecting "to unnecessary and prejudicial autopsy
photographs admitted at trial." (C. 133.) The State offered 23 autopsy
photographs; Largin's counsel objected only to a photograph of Peggy's
body "in which the top of the skull had been removed." (C. 133.) Largin
alleged that if counsel had objected to all the photographs, "there is a
reasonable probability that [the circuit court] would have sustained the
objections and limited which gruesome pictures the jury saw," and "there
is a reasonable probability that Mr. Largin would not have been found
guilty of murder or sentenced to death." (C. 134.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded and that it lacked merit. (C. 620.) The circuit
court cited this Court's rejection of the underlying claim on direct appeal
in which this Court found that there was no error, plain or otherwise, in
85
CR-20-0228
the admission of the photographs. Largin, 233 So. 3d at 433-34. As for
the one photograph that trial counsel objected to, this Court held that
"[e]ven though the photograph was gruesome, it demonstrated the
character and location of wounds, and illustrated the medical examiner's
testimony." 233 So. 3d at 434. This Court held:
"We reach the same conclusion as to the remaining
photographs. They depicted the character and extent of the
victims' internal and external wounds, and they were used to
aid the medical examiner's testimony. The trial court did not
commit any error, much less plain error, when it admitted the
photographs into evidence."
233 So. 3d at 434.
On appeal, Largin challenges the circuit court's summary dismissal
of this claim, but he does not address this Court's holding in Largin that
the claim underlying the allegation of ineffectiveness lacks merit. He
merely asserts that trial counsel should have objected to all the
photographs, and he reiterates the arguments that this Court rejected on
direct appeal. Largin is due no relief. See, e.g., Carruth, 165 So. 3d at
641. Cf. McNabb, 991 So. 2d at 326.
O.
In claim I.C.1., Largin alleged that counsel were ineffective for not
objecting "to prosecutorial misconduct during the penalty phase of trial."
86
CR-20-0228
(C. 134.) Largin alleged six instances of prosecutorial misconduct, and
argued that those "improper comments and arguments, individually and
cumulatively," violated his rights. (C. 135-40.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded and that it lacked merit. (C. 621.) The circuit
court cited this Court's rejection of the underlying claim on direct appeal
in which this Court found that there was no error, plain or otherwise, in
the same six instances of alleged misconduct. Largin, 233 So. 3d at 416-
22. The circuit court also cited this Court's rejection on direct appeal of
Largin's argument that "the cumulative effect of the prosecutor's closing
arguments" violated his rights. (C. 621, citing Largin, 233 So. 3d at 422-
23.)
On appeal, Largin challenges the circuit court's summary dismissal
of this claim, but he does not address this Court's holding in Largin that
the claim underlying the allegation of ineffectiveness lacks merit. Largin
is due no relief. See, e.g., Carruth, 165 So. 3d at 641. Cf. McNabb, 991
So. 2d at 326.
CONCLUSION
The judgment of the circuit court is affirmed.
87
CR-20-0228
AFFIRMED.
McCool and Cole, JJ., concur. Kellum, J., concurs in the result.
Windom, P.J., recuses herself.
88