Ex Parte Pierce

"On January 26, 1989, Andy Dwight Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. His conviction was affirmed on appeal, but the Court of Criminal Appeals remanded the case for resentencing because improper information had been admitted during the sentencing phase of the trial.

Pierce v. State

,576 So.2d 236(Ala.Crim.App. 1990). Pierce was resentenced to death, on April 15, 1991. On return to the remand, the Court of Criminal Appeals ordered a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory strikes to exclude blacks from the jury venire.

Pierce

v. State

,586 So.2d 1005(Ala.Crim.App. 1991). On return to the second remand, the Court of Criminal Appeals held that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced Pierce to death.

Pierce v. State

,612 So.2d 514(Ala.Crim.App. 1992). This Court affirmed the conviction and the resentencing,

Ex parte Pierce

,612 So.2d 516(Ala. 1992), and the United States Supreme Court denied certiorari review,

Pierce v. Alabama

,510 U.S. 872(1993). The Court of Criminal Appeals issued a certificate of judgment on February 3, 1993.

"On December 2, 1994, Pierce filed a petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P. The trial court dismissed several claims, finding that they were procedurally barred by Rule 32.2(a)(2), (3), (4), and (5), Ala.R.Crim.P. After conducting an evidentiary hearing, the trial court entered an order denying Pierce relief on all of his remaining claims. The Court of Criminal Appeals affirmed.

Pierce v. State

, [March 2, 1999]851 So.2d 558(Ala.Crim.App. 1999).

"This Court granted Pierce's petition for certiorari review, to examine one of Pierce's four claims — that Sheriff Douglas Whittle had been a key witness for the prosecution and that he had close and continual contact with the jury throughout the trial. The Court of Criminal Appeals held that this issue was procedurally barred by Rule 32.2(a)(3) and (5) because it was not raised at trial or on direct appeal, and it further held the claim to be without merit."

"At the outset, we hold that [Pierce] has not satisfied his burden of proving that the alleged improper contacts between Whittle and the jury constitute newly discovered evidence. Therefore,Page 625the circuit court correctly found that [Pierce's] claim concerning Whittle's alleged improper contact with jurors was procedurally barred because [Pierce] could have raised it at trial or on appeal but did not. Rule 32.2(a)(3) and (5), Ala.R.Crim.P.

"With regard to newly discovered evidence, Rule 32.1(e), Ala.R.Crim.P., provides:

"`(e)Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:

"`(1) The facts relied upon were not known by petitioner or petitioner's counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;

"`(2) The facts are not merely cumulative to other facts that were known;

"`(3) The facts do not merely amount to impeachment evidence;

"`(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and

"`(5) The facts establish that petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that petitioner received.'

"When filing a petition for post-conviction relief, `[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.' Rule 32.3, Ala.R.Crim.P. [Pierce] has not satisfied his burden of proving that his allegations qualify as newly discovered evidence."

"Even if this claim were properly before us, we would decide it adversely to [Pierce]. First, the facts do not support [Pierce's] claim that Whittle had an improper close and continual association with the jurors. Second, the record does not show that Sheriff Whittle was a key State witness. Third, [Pierce] has not shown any evidence that he was actually prejudiced by any contacts between Whittle and the jury.

"First, [Pierce] has not shown that Sheriff Whittle had close and continual contact with the jurors. At the evidentiary hearing on [Pierce's] Rule 32 petition, three jurors — Gerald Butler, Robert Owens, and Keith Brown — testified regarding Sheriff Whittle's contact with the jury during the trial. Dot Kirkland, who served as a matron for the jurors during the trial, also testified regarding Sheriff Whittle's contacts with the jurors during the trial.

"Gerald Butler testified that he thought Whittle was in the courtroom with other law enforcement personnel at one time during the trial, but he was not sure. He did not remember Sheriff Whittle driving the jurors or eating with the jurors any time during the trial. He did testify that, on some mornings during the trial, Whittle went to the motel where the jurors were staying to make sure everything ran smoothly.

"Butler also testified that, on the morning just before the sentencing hearing began, Whittle told him there would be extra security in the courtroom because a member of [Pierce's] family had threatened the jury. However, Butler stated that he and Whittle did not discuss the facts of the case during that conversation. He also added that he did not discuss the facts of the case at any time with Whittle or any of the bailiffs or deputies. Finally, he testified that the extra security in the courtroom did not disturb him.

"Robert Owens testified that Whittle did not drive the jurors while they were sequestered. Although he stated that Sheriff Whittle was sometimes `with' the jurors at lunch, Owens also testified that only some of the deputies and Dot Kirkland `ate with' the jurors. He testified that he had known Whittle all of his life, but stated that that did not have any effect on his decisions as to [Pierce's] guilt or during sentencing. He further testified that he followed the trial court's instructions and made his decisions based only on the testimony, exhibits, and evidence presented at trial.

"Keith Brown testified that he did not specifically remember who drove the jurors back and forth between Geneva and Enterprise, although he indicated that he thought Whittle and some of his deputies did. He stated that he did not remember being in the car Whittle was driving. He also testified that Whittle and some of his deputies went with the jurors to eat lunch. However, he stated that Whittle did not discuss the facts of the case during lunch. Keith Brown testified that he overheard something in the hallway of the courthouse about [Pierce's] family making threatening comments.Page 627Although he was not sure, he testified that he thought the people he heard talking were deputies. However, he testified that the fact that he heard about the threats did not affect his deliberations.

"Dot Kirkland testified that she, Whittle, and the chief deputy drove the vehicles that transported the jurors during the trial and that they accompanied the jurors to lunch. She added that neither she, Whittle, nor the chief deputy talked to the jurors about the facts of the case.

"Thus, the evidence concerning Sheriff Whittle's contact with the jury was conflicting. [Pierce] alleges that Whittle talked with the jurors about the case and that Keith Brown heard Whittle and his deputies discussing the threats [Pierce's] family made against the jury. All of the testimony at the evidentiary hearing established that Whittle did not discuss the facts of the case with the jurors. The only mention of a conversation between Sheriff Whittle and a juror was that, on the morning before the sentencing hearing, Whittle communicated to Juror Butler the fact that security was being increased because [Pierce's] family had threatened the jurors. However, this occurred after [Pierce] had been found guilty, and Butler testified that it did not affect his sentencing recommendation. Juror Butler testified that he thought he overheard deputies, not Whittle, discussing the threat, but stated that it did not have any effect on his deliberations.

"[Pierce] also cites Dot Kirkland's testimony that Whittle ate lunch with the jurors every day and transported the jurors to and from Enterprise every day during the trial, and states that these assertions are supported by other testimony. However, there was also testimony that Whittle did not drive or eat with the jurors during the trial. Again, the testimony was conflicting. In such an instance, the circuit court's decision regarding the credibility of the witnesses should be given great deference. Here, the circuit court, in addressing the merits of [Pierce's] claim, made the following findings of facts after the evidentiary hearing:

"`The next claim is that jurors had ex parte contact with Sheriff Whittle during the trial. There was testimony presented at the Rule 32 hearing that Sheriff Whittle, on occasion, helped transport the jurors to lunch and to and from their hotel. There was no evidence presented that the Sheriff ate with the jurors or that any discussion occurred between the jurors and the Sheriff concerning the facts of the case. In fact, three jurors testified at the Rule 32 hearing that there was no discussion between Sheriff Whittle and these jurors about the facts of this case. Further, the jurors testified that the fact that Sheriff Whittle helped transport them on occasion did not affect their deliberations in this case. Thus, this claim is without merit.'

"The circuit court properly found that [Pierce] did not show that Whittle had improper close and continual contact with the jury throughout the trial. Because there was conflicting testimony about Whittle's contact with the jury, it was the circuit court's responsibility to make credibility choices and to resolve the conflicts in the testimony. The record of the evidentiary hearing supports the circuit court's findings,

see

Nathan v. State

,689 So.2d 934(Ala.Cr.App. 1996), and we will not overturn them. Based on the circuit court's findings and the evidence presented at the evidentiary hearing, we hold that [Pierce] did notPage 628present evidence sufficient to support a finding that Whittle had a `close and continual association with the jurors.'

Turner [v. Louisiana

,379 U.S. 466(1965)]. Rather, `the attentions are such as might have been expected from the officer in charge of the jury, whoever he might be, when authorized or approved by the trial judge.'

Harris v. State

,233 Ala. 196,198,172 So. 347,348(Ala. 1936). In

King v. State

,266 Ala. 232,238,95 So.2d 816,821(Ala. 1957), this court held:

"`The proof shows no undue familiarity between the officers and the juror. In instances of this kind each case stands on its own facts.

Bell v. State

,227 Ala. 254,149 So. 687[(1933)]. The fact that the officer in charge of the jury testifies to important facts, does not always disqualify him from having charge of the jury.

Harris v. State

,233 Ala. 196,172 So. 347.'

"Because [Pierce] has not shown that Sheriff Whittle had improper close and continual contact with the jurors during the trial, his argument must fail.

"Second, [Pierce] did not prove that Sheriff Whittle was a key witness in this case. When he was taken into custody in Coffee County, [Pierce] made a statement about the crime to Coffee County Deputy Jack Hubbard. When Sheriff Whittle and Geneva County Deputy Greg Ward took [Pierce] into custody from Coffee County officials and transported him to Geneva County, [Pierce] made another statement regarding the crime. At trial, Hubbard and Ward testified about the substance of the statements [Pierce] made. [Pierce's] brother also testified about what [Pierce] had told him about the crime. In addition, [Pierce's] friends testified about his suspicious actions after the murder, including his having possession of the victim's automobile, his inconsistent statements about why he was driving the vehicle, and his offer to sell the vehicle to one of his friends for $5. Sheriff Whittle was the last witness to testify for the State, and his testimony was largely repetitive of the evidence already introduced through other witnesses. Although he gave more details in his testimony, the other officers and [Pierce's] brother had already testified about the substance of each of [Pierce's] statements. Therefore, much of Whittle's testimony had already been presented to the jury.

"In addition, [Pierce's] testimony at trial was consistent with his previous statements to police. In the statement he made to Whittle, [Pierce] admitted taking the victim's vehicle but denied killing her. In fact, he stated that a man named Jim told him, at gunpoint, to take the vehicle and leave. He contended that Jim killed the victim. This was consistent with the story he had previously told his brother, Hubbard, and Ward and with his later trial testimony. Furthermore, there was other evidence connecting [Pierce] to the crime, including the testimony of John Juhnke, Nathan Pierce, and his friends who observed his actions after the crime. Finally, other witnesses testified about the appearance of the crime scene, the discovery of the victim's vehicle, and what [Pierce] was doing and what clothes he was wearing when he was arrested. Thus, contrary to [Pierce's] assertions, Whittle was not the State's main witness against [Pierce], and his testimony was not necessary to convict [Pierce].

"[Pierce] argues that Sheriff Whittle's comments about his demeanor and conduct during questioning were damaging to his defense. On direct examination by the State, Whittle testified that [Pierce] was quiet, not belligerent,Page 629during questioning. During cross-examination, defense counsel elicited Whittle's testimony that [Pierce's] conduct was not consistent with the way most other suspects acted during questioning. Defense counsel also elicited Whittle's testimony that, during questioning about the murder, [Pierce] became emotional, started crying, and stated that he did not commit the murder. Finally, counsel elicited Whittle's testimony that [Pierce] talked to the officers every time they asked him to and that he had been a model prisoner while in jail. Thus, defense counsel attempted to use Whittle's testimony to [Pierce's] advantage to show that [Pierce] did not act like other criminals, that he did show emotion about the crime, that he cooperated with law enforcement in the investigation of the crime, and that he was a model prisoner. Accordingly, [Pierce's] arguments about Whittle's comments are not well taken.

"Much of Sheriff Whittle's testimony was merely cumulative to the testimony of the other witnesses. Furthermore, it was consistent with [Pierce's] trial testimony. Finally, based on the evidence presented by the other State witnesses, Whittle's testimony was not necessary to obtain a conviction. Therefore, [Pierce] did not prove that Sheriff Whittle was a key witness for the State."