Cited by 6 later decisions — most recently April 1996
5 state decisions
Key passage — most relied on by later courts
“"While the failure of counsel to investigate a potential source of exculpatory information may amount to ineffective assistance of counsel, United States v. Baynes , 687 F.2d 659 , 673 (3d Cir. 1982), `[t]he decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel'. Oliver v. State , 435 So.2d 207 , 209 (Ala.Crim.App. 1983). See also Strickland v. Washington , [466] U.S. [668], 104 S.Ct. 2052 , 80 L.Ed 2d 674 (1984); United States v. Cronic , [466] U.S. [648], 104 S.Ct. 2039 , 80 L.Ed 2d 657 (1984). In reviewing a claim of ineffective *Page 534 assistance of counsel, courts must consider the totality of the circumstances of each case."”
“'Evidence is not considered newly discovered where a failure to thoroughly examine a witness prevents the earlier discovery of new or different testimony.' Johnson v. State , 439 So.2d 1340 , 1342 (Ala.Cr.App. 1983). This rule applies even where the witness does not actually testify at trial but whose existence is known to either the defendant or his attorney. Ward v. State , 49 Ala. App. 710 , 712 , 275 So.2d 690 (1973); Barnes v. State , 415 So.2d 1217 , 1219 (Ala.Cr.App. 1982).”
¶2In 1981, Anthony Chappell pled guilty to second degree assault and, after a jury trial, was convicted of attempted murder. For each offense, he received a sentence of six years' imprisonment. In 1983, Chappell filed a petition for writ of error coram. nobis. This appeal is from the denial of that petition.
Chappell is entitled to have his appeal from the conviction of attempted murder reinstated. That appeal was originally affirmed by this Court without published opinion. Chappell v.State, 416 So.2d 1115 (1981). Because Chappell's appellate counsel failed to file a brief in support of that appeal, Chappell is entitled to an "out-of-time" appeal. Longmire v.State, 443 So.2d 1265 (Ala. 1982); Peterson v. State,428 So.2d 201 (Ala.Cr.App. 1983). See also Mylar v. Alabama,671 F.2d 1299 (11th Cir. 1982), cert. denied, Alabama v. Mylar, ___ U.S. ___, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).
¶5The existence of the two eyewitnesses was known to both Chappell and his attorney at trial. Therefore, he is not entitled to a new trial on the ground of newly discovered evidence. Summers v. State, 366 So.2d 336, 340 (Ala.Cr.App. 1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala. 1979). "Evidence is not considered newly discovered where a failure to thoroughly examine a witness prevents the earlier discovery of new or different testimony." Johnson v. State,439 So.2d 1340, 1342 (Ala.Cr.App. 1983). This rule applies even where the witness does not actually testify at trial but whose existence is known to either the defendant or his attorney.Ward v. State, 49 Ala. App. 710, 712, 275 So.2d 690 (1973);Barnes v. State, 415 So.2d 1217, 1219 (Ala.Cr.App. 1982).
¶6The judgment of the circuit court denying the petition for writ of error coram nobis is reversed. The affirmance of Chappell's conviction for attempted murder in Chappell v.State, 416 So.2d 1115 (1981), is set aside and the appeal in that case is reinstated. Chappell's present counsel, William L. Nix, is appointed to represent him on appeal. The time for filing briefs is to begin to run from the release date of this opinion.
