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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

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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

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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

JDLloyd@JDLloydLaw.com

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

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Exhibit 3

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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.

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"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

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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

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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).

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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."

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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

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Exhibit 4

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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 "

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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

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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.

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"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:

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RHONDA SUE MEREDITH My Commission EXpires

.hlne 8, 2019

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