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IN THE CIRCUIT COURT OF MADISON COUNTY
BRETT PATRICK NAFF, )
Petitioner, )
)
VS. ) CC-2013-4553.60
)
STATE OF ALABAMA, )
Respondent. )
PETITIONER’S AMENDMENT TO HIS BRIEF IN SUPPORT HIS OF
PETITION FOR RELIEF FROM CONVICTION OR SENTENCE PURSUANT TO
RULE 32, ALA. R. CRIM. P.
COMES NOW, the petitioner, Brett Patrick Naff, by and
through undersigned counsel who submits the following
amendment/supplement to his brief in support of his
petition for relief from sentence or conviction filed
pursuant to Rule 32, Ala. R. Crim. P.
Rule 32.7(b), Ala. R. Crim., provides that a petitioner
may amend his petition any time prior to the entry of
judgment in the Rule 32 proceedings. As such, Mr. Naff
hereby amends and/or supplements his Rule 32 petition
pursuant to Rule 32.7(b) to include the following factual
allegations forming the bases of the claims presented in
his brief in support of his Rule 32 petition:
ELECTRONICALLY FILED11/30/2015 11:21 AM
47-CC-2013-004553.60CIRCUIT COURT OF
MADISON COUNTY, ALABAMAJANE C. SMITH, CLERK
DOCUMENT 30
2
N. A former Chief Justice of the Alabama Supreme Court
believes Mr. Naff suffered ineffective assistance of
counsel under Strickland v. Washington.
Mr. Naff attaches to this petition an affidavit from the
former Chief Justice of the Alabama Supreme Court, the
Honorable Sue Bell Cobb, in support of his claim that Mr.
Naff was denied his right to constitutionally effective
representation under Strickland v. Washington. Chief
Justice Cobb has reviewed Mr. Naff’s trial and believes
that trial counsel was constitutionally ineffective under
Strickland. Additionally, Chief Justice Cobb believes trial
counsel’s errors prejudiced Mr. Naff’s ability to prosecute
a successful appeal to the Alabama appellate courts. See
Exhibit 3 - Affidavit of Chief Justice Sue Bell Cobb.
O. Another criminal law expert and law professor believes Mr. Naff suffered ineffective assistance of counsel
under Strickland v. Washington.
Mr. Naff also attaches to this petition an affidavit from
a criminal law expert, Mr. David S. Luker, in support of
his claim that Mr. Naff was denied his right to
constitutionally effective representation under Strickland
v. Washington. Mr. Luker, a criminal defense attorney and
law professor, has reviewed Mr. Naff’s trial. Mr. Luker is
of the expert opinion that trial counsel was
DOCUMENT 30
3
constitutionally ineffective under Strickland at trial. See
Exhibit 4 - Affidavit of David S. Luker.
Respectfully submitted on this on this the 30th of
November, 2015.
/s J.D. Lloyd_____
J.D. Lloyd (LLO-011)
Counsel for Petitioner
The Law Office of J.D. Lloyd
PO Box 43945
Birmingham, AL 35243
Certificate of Service
I, J.D. Lloyd, herby certify that I have served a copy of
this amendment/supplement to Mr. Naff’s Rule 32 petition
upon the Madison County District Attorney via AlaFile, on
this the 30th of November, 2015.
/s J.D. Lloyd____
J.D. Lloyd
DOCUMENT 30
Exhibit 3
DOCUMENT 30
State of Alabama Jefferson County
AFFIDAVIT
"My name is Sue Bell Cobb. 1 am over nineteen (19) years of age, under no legal
disability, and make this affidavit based upon personal knowledge of the facts contained
herein.
"I am the former Chief Justice of the Alabama Supreme Court, a position 1 held from
2007 until 2011. 1 was the first woman elected to this position in the state's history. Prior
to being elected chief justice, 1was the first woman to be elected to serve as an associate
on the Alabama Court of Criminal Appeals, a position I held from 1995 until 2007. I also
served as the Conecuh County District Judge from 1981 until 1995.1 am the first person
in the history of the State of Alabama to serve as a district court judge, intermediate
appellate court judge and Chief Justice of the Alabama Supreme Court. 1 have written
more than one thousand published and unpublished appellate decisions in criminal cases
and reviewed tens of thousands more during my time as an appellate court judge.
"During my service as Chief Justice of the Alabama Supreme. Court, 1 served as a
member of the Executive Board of the Conference of Chief Justices and chaired the
Conference of Chief Justices Standing Committee on Criminal Justice. 1 also served as a
member of National Center of State Courts' Committee on Sentencing Risk Assessment
Guidelines and as a member of the Criminal Justice Advisory Committee to McArthur
Foundation. Finally, 1 served as the president of the Alabama Council of Juvenile and
Family Court judges.
1
DOCUMENT 30
"I received a number of awards while I served as the Chief Justice of the Alabama
Supreme Court. I am the 2010 recipient of the Alabama Bar Association Judicial Award
of Merit; the Kentucky Supreme Court Liberty Bell Award; the "Taking Drug Courts to
Scale" Award -- the National Association of Drug Court Professionals' Judicial
Leadership Award; and the National Leadership Award from the National Detention
Association. I represented the United States Department of State as a speaker at the
International Constitutional Law Conference in Sao Paulo, Brazil, speaking about
"Binding Precedent." I frequently speak at Continuing Legal Education seminars on such
topics as: Preservation of Error, Criminal Law Updates, Post Conviction Relief, Ethics,
Juvenile Justice, Effective Appellate Advocacy, Importance of Pro Bono Representation,
Leadership, State of the Judiciary, and Sentencing Reform.
"I am a past board chair and founding member of Children First Foundation, Inc. This
organization's mission is to shape public policy on behalf of Alabama's children,
primarily with the legislature of Alabama. I currently serve on the executive committee of
this foundation.
"Since retiring from the judiciary after 30 years on the bench, I have continued to
practice law in a limited capacity and have devoted the majority of my time to improving
the justice system of Alabama, public safety, sentencing reform, working on juvenile
justice, and access to justice. I also consult as an expert on a number of legal matters.
"I have reviewed a transcript of the trial of State of Alabama versus Brett Patrick
Naff, Madison Circuit Court, CC-2013-4553. It is my expert opinion that Mr. Naffs trial
counsel was constitutionally ineffective under Strickland v. Washington. I believe that
2
DOCUMENT 30
Mr. Naffs counsel committed a vast number errors that prejudiced Mr. Naff at trial and
on direct appeal.
"I believe that Mr. Naff did not enJoy the effective representation of counsel
guaranteed to him by the Sixth Amendment. In my expert opinion, trial counsel
completely failed to challenge (a) the propriety of the admission of character evidence
under Rule 404(a), Ala. R. Evid.; (b) the propriety of the admission of evidence of
irrelevant prior bad acts under Rule 404(b), Ala. R. Evid.; (c) the State's failure to
provide proper notice of its intent to introduce prior bad act evidence even though notice
was properly requested; and (d) the manner in which the jury was told it could consider
the evidence of prior bad acts. In my expert opinion, the jury undoubtedly considered
impennissible character evidence and wholly irrelevant and prejudicial stories of Mr.
Naffs alleged prior bad acts.
"Moreover, counsel completely failed to object in a manner that I believe was
necessary to preserve a record for review by the Alabama Court of Criminal Appeals. It is
imperative that a defense attorney bring error to the trial court's attention through a
timely objection. In this case, the Alabama Court of Criminal Appeals could only review
the error brought to the attention of the trial court. If no objection was made, there was
nothing for the appellate court to review. Counsel virtually made no meaningful
objections to the State's improper evidence, lack of notice, or the improper jury
instruction during the course of this trial. Based upon my experiences and review of
thousands of cases while I sat on the Alabama Supreme Court and Alabama Court of
Criminal Appeals, I believe trial counsel absolutely failed to preserve for appellate
3
DOCUMENT 30
review any claim regarding the State's improper introduction of character evidence, its
introduction of prejudicially irrelevant prior bad act evidence, and its lack of notice that it
would introduce certain prior bad act evidence. Again, I believe counsel should have
objected dozens of times throughout this trial, which, I believe, would have brought relief
at trial. This cannot be considered a tactical or strategic decision as trial counsel could
have preserved a record of his objections outside the presence of the jury. Even if timely
objections at trial had not brought relief, I am of the opinion that properly preserved
objections would have brought relief on direct appeal to the Court ofCriminal Appeals.
"It is also my expert opinion that trial counsel should have objected to this Court's
instruction as to how the jury could consider evidence of prior bad acts under Rule
404(b), Ala. R. Evid., was improper. The Alabama Supreme Court spoke definitively on
this issue in Ex parte Billups, 86 So. 3d 1079 (Ala. 2010). I was Chief Justice of the
Alabama Supreme Court at the time this ruling came down and voted in favor of
reversing Mr. Billups' conviction. In my expert opinion, Mr. Naff faced an identical
situation to Mr. Billups in the context of the protections of Rule 404(b): the trial court
admitted "bad act" evidence pursuant to Rule 404(b) and improperly gave the jury a
"blanket" instruction, which allowed the jury to consider the bad-act evidence without
any sort of limitation. Mr. Naffs jury, like Mr. Billups's jury, was in no way limited in
how it could consider this evidence. Moreover, I find the error in Mr. Naffs case to be
more egregious than the similar error in Billups. The vast majority of the "bad act"
evidence admitted at Mr. Naffs trial should not have been before the jury at all -- it was
highly improper and inadmissible as it could not fit within any exception of Rule 404(b).
4
DOCUMENT 30
When one couples the improper "bad act" evidence with the impermissibly broad
instruction, there is no doubt in my mind that these errors affected Mr. Naffs substantial
rights and seriously affected the fairness and integrity of the proceedings against him.
"Further Affiant saith not."
5
DOCUMENT 30
Sue Bell Cobb Affiant
State of Alabama Jefferson Con ty
I, \do-1-\b\r\'p+-.yr;'-\k7'-v.A:r''-¥-'--=-\---,I_., a Notary Public in and for said County and in said State,
hereby certify that SUE BELL COBB, whose name is signed to the foregoing instrument,
and who is known to me, acknowledged before me on this day that, being informed of the
contents of the instrument, she executed the same voluntarily on the day the same bears
date.
Give under my hand
6
DOCUMENT 30
Exhibit 4
DOCUMENT 30
State of Alabama Jefferson County
AFFIDAVIT
"My name is David S. Luker. 1 am over nineteen (19) years of age, under no legal
disability, and make this affidavit based upon personal knowledge of the facts contained
herein.
"I am an attorney licerised to practice in the State of Alabama. My practice is located
in Birmingham, AL, where 1 am the senior partner with the firm David S. Luker, P.C. &
Associates. 1 have been practicing criminal law since 1983, when 1 graduated from the
Birmingham School of Law.
"My practice concentrates in criminal defense, with a special emphasis on drug
offenses, white collar crimes, and murder cases. During my 30 plus years of practice, 1
have handled thousands of criminal cases, including complex white collar and drug cases
in both State and Federal Courts, and hundreds of felony trials throughout the State of
Alabama, and across the Southeast, including many capital murder cases. 1 have
successfully defended the capital defendants, receiving numerous acquittals or
convictions on lesser-included offenses. No capital murder defendant 1 have represented
has received the death penalty.
"I have been aprofessor at the Birmingham School of Law for over 15 years. 1 have
taught Criminal Procedure, Advanced Trial Advocacy, and Legal Writing. 1 have
authored various articles, and am a frequent lecturer at seminars regarding the field of "
1
DOCUMENT 30
criminal law and criminal defense, with special emphasis on defense of drug and white
collar crimes, search and seizure, cross-examination, and the use of psychologist in jury
selection, for both Federal and State courts.
"I am a past president of the Alabama Criminal Defense Lawyers Association and co
founder/charter member of the Greater Birmingham Criminal Defense Lawyers
Association. 1 serve on the executive committee of the Criminal Justice Act ("CJA")
Panel for the United States District Court of the Northern District of Alabama
"I have reviewed the transcript of the trial of State of Alabama versus Brett Patrick
Naff, Madison Circuit Court, CC-2013-4553, on the request of Mr. Naffs post
conviction counsel, Mr. J.D. Lloyd. It is my expert opinion that the State of Alabama
presented inadmissible character evidence and improper evidence of Mr. Naffs prior bad
acts through· the testimonies of Tammy Criscoe, Joshua Criscoe, Nicholas Waddley,
Kristine Waddley, Michael Waddley, Clark Chambers, Sherri Bulgatz, and Cory Walker.
Further, it is my expert opinion that the State of Alabama failed to give Mr. Naff proper
notice that these witnesses would testify about prior bad acts Mr. Naffpurportedly carried
out.
"In my expert opinion, the prior bad acts described by these witnesses could not fit
within one of the exceptions to general rule of exclusion under Rule 404(b), Ala. R. Evid.
The acts offered by these witnesses had very little, if any, probative value to the questions
at hand in Mr. Naffs trial. Admission of these prior bad acts was not reasonably
necessary for the State of Alabama to prove its case against Mr. Naff. I firmly believe the
2
DOCUMENT 30
prejudicial effect of these bad acts overwhelmingly outweighed the probative value of the
acts.
"Furthermore, this Court's instruction regarding how the jury could consider the
evidence of prior bad acts was impermissibly broad. Instead of narrowing the instruction
so that the jury could only consider the bad acts on the grounds offered by the State, this
Court gave the jury a blanket instruction and allowed the jury to consider every exception
discussed in Rule 404(b). This was improper under the recent Alabama Supreme Court
decision of Ex parte Billups, 86 So .3d 1079 (Ala. 2010).
"It is my expert opinion that trial counsel was constitutionally ineffective under
Strickland v. Washington as a result of counsel's failures to object to these various errors
at trial. Counsel did not object to (a) the improper character evidence, (b) the improper
admission of evidence of Mr. Naffs prior bad acts, (c) the State's lack of notice that the
eight aforementioned witnesses would testify to Mr. Naffs prior bad acts, (d) the
prejudicial effect of the bad act evidence outweighing the probative value, and (e) the
improper jury instruction regarding the prior bad act evidence. It is clear to me that
counsel's failure to object was erroneous under the law. Further, it is clear to me that
these errors prejudiced Mr. Naffs defense. Had counsel objected, this Court would most , ;
likely have ruled in Mr. Naffs favor at trial, and limited the State's highly-improper
attack on Mr. Naffs char~cter. Likewise, had counsel objected only to be overruled by
this Court, counsel would have preserved reversible error for review at the Court of ,
Criminal Appeals. I believe an appeal of these arguments would have been successful if
they could have been presented on appeal.
3
DOCUMENT 30
"It is my expert opinion that Mr. Naffs substantial rights were severely affected by
these errors, and that the outcome of trial and appeal would have been different had trial
counsel properlyobjected on any of these grounds.
"Further Affiant saith not."
David S. Luker Affiant
STATE OF ALABAMA ) COUNTY of JEFFERSON )
I, Rb qlda rY')e,(~d'itb , a Notary Public in and for said County and in said State,
hereby certify that David ,So Luker, whose name is signed to the foregoing instrument,
and who is known to me, acknowledged before me on this day that, being informed of the
contents of the instrument, she executed the same voluntarily on the day the same bears
date.
Give under my hand and official seal this 20 day of Oc6h",y ,2015.
NOTARY PUBLIC
My Commission Expires:
4
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RHONDA SUE MEREDITH My Commission EXpires
.hlne 8, 2019
DOCUMENT 30