Eugene Milton Clemons Ii v. State

• Decision Date: 16 September 2005
• Docket Number: CR–01–1355.
• Citation: 55 So.3d 314
• Court: Alabama Court of Criminal Appeals
• Parties: Eugene Milton CLEMONS IIv.STATE of Alabama.

55 So.3d 314

Eugene Milton CLEMONS II

v.STATE of Alabama.

CR–01–1355.

Court of Criminal Appeals of Alabama.

Aug. 29, 2003.Opinion Affirming on Return to Remand June 24, 2005.Rehearing Denied Sept. 16, 2005.

James S. Christie, Jr., Birmingham; Anne R. Yuengert, Birmingham; Daniel G. Grove, Washington, D.C.; and Marc Z. Michael, Washington, D.C. (withdrew 04/01/2005); and Anne W. Stukes, Washington, D.C., for appellant.William H. Pryor, Jr., and Troy King, attys. gen., and Anne C. Adams, James Clayton Crenshaw, and Henry Mitchell Johnson, asst. attys. gen., for appellee.BASCHAB, Judge.

On September 25, 1994, the appellant, Eugene Milton Clemons II, was convicted of the capital offense of robbery-murder. See § 13A–5–40(a)(2), Ala.Code 1975.¹ The jury unanimously recommended that he be sentenced to death. On October 11, 1994, the trial court followed the jury's recommendation and sentenced the appellant to death. This court and the Alabama Supreme Court affirmed the appellant's conviction and sentence on direct appeal, see Clemons v. State, 720 So.2d 961 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998), and the United States Supreme Court denied his petition for certiorari review, see Clemons v. Alabama, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 906 (1999). The relevant facts of the case are set forth in the opinions on direct appeal. This court issued a certificate of judgment on September 10, 1998.

In December 1999 or January 2000,² the appellant filed a Rule 32 petition, challenging his conviction and sentence. He filed amended petitions on or about October 17, 2000, and January 31, 2001. The State responded and moved to dismiss many of the claims. The circuit court dismissed some of the claims and denied some of the claims after conducting an evidentiary hearing. This appeal followed.

After the circuit court denied the petition and while the appeal to this court was pending, the United States Supreme Court released its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the Supreme Court held:

“We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State's power to take the life’ of a mentally retarded offender.”

536 U.S. at 321, 122 S.Ct. at 2252. In Atkins, the Supreme Court reversed its earlier decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

In his petitions, the appellant argued that his trial attorneys rendered ineffective assistance because they did not develop and present any mitigating evidence concerning his limited mental capacity. In his brief to this court, he reasserts his ineffective-assistance-of-counsel claims. In addition, he argues for the first time that he is mentally retarded and that, in light of Atkins, his sentence of death is unauthorized as a matter of law.³

As a threshold matter, we must determine whether the appellant's claims that he is mentally retarded and that his sentence is unauthorized by law are properly before this court. In Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989), the United States Supreme Court held:

“[W]e now adopt Justice Harlan's view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”

The Court then recognized two exceptions to the general rule: (1) those instances in which the new rule places certain kinds of conduct beyond the power of the criminal law-making authority to proscribe and (2) those instances in which the new rule is a “watershed” rule of criminal procedure that requires the observation of procedures that are implicit in the concept of ordered liberty and whose nonapplication would seriously diminish the likelihood of an accurate conviction. See Teague, 489 U.S. at 307, 311, 313, 109 S.Ct. at 1073, 1076, 1077.

In Penry, supra, the United States Supreme Court stated:

“Under Teague, we address the retroactivity issue as a threshold matter because Penry is before us on collateral review. 489 U.S., at 310. If we were to hold that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry, we would be announcing a ‘new rule.’ Id., at 301. Such a rule is not dictated by precedent existing at the time Penry's conviction became final. Moreover, such a rule would ‘brea[k] new ground’ and would impose a new obligation on the States and the Federal Government. Ibid. (citing Ford v. Wainwright, 477 U.S. 399, 410 (1986) which held that the Eighth Amendment prohibits the execution of insane persons, as a case announcing a new rule).

“In Teague, we concluded that a new rule will not be applied retroactively to defendants on collateral review unless it falls within one of two exceptions. Under the first exception articulated by Justice Harlan, a new rule will be retroactive if it places ‘ “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” ’ Teague, supra, at 307 (quoting Mackey[ v. United States], 401 U.S., [667] at 692 [(1971)] (Harlan, J., concurring in judgments in part and dissenting in part)). Although Teague read this exception as focusing solely on new rules according constitutional protection to an actor's primary conduct, Justice Harlan did speak in terms of substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed. This Court subsequently held that the Eighth Amendment, as a substantive matter, prohibits imposing the death penalty on a certain class of defendants because of their status, Ford v. Wainwright, supra, at 410 (insanity), or because of the nature of their offense, Coker v. Georgia, 433 U.S. 584 (1977) (rape) (plurality opinion). In our view, a new rule placing a certain class of individuals beyond the State's power to punish by death is analogous to a new rule placing certain conduct beyond the State's power to punish at all. In both cases, the Constitution itself deprives the State of the power to impose a certain penalty, and the finality and comity concerns underlying Justice Harlan's view of retroactivity have little force. As Justice Harlan wrote: ‘There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.’ Mackey, supra, at 693. Therefore, the first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Thus, if we held, as a substantive matter, that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry regardless of the procedures followed, such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review.”

492 U.S. at 329–30, 109 S.Ct. at 2952–53 (emphasis added). Accordingly, we conclude that the decision in Atkins falls within Teague's first exception to the general rule of nonretroactivity and applies retroactively to cases that are on collateral review.⁴ The other states that have addressed this issue since the decision in Atkins have also reached this same conclusion. SeeRussell v. State, 849 So.2d 95 (Miss.2003); Johnson v. State, 102 S.W.3d 535 (Mo.2003); State v. Dunn, 831 So.2d 862 (La.2002).

Our review of the appellant's arguments that he is mentally retarded, that his trial attorneys rendered ineffective assistance by not developing and presenting any mitigating evidence concerning his limited mental capacity, and that his sentence is unauthorized as a matter of law is hampered because there is conflicting evidence in the record concerning his IQ. The public defender who initially represented the appellant at trial testified that, during his investigation, he had obtained information that indicated that, when the appellant was in the fifth or sixth grade, his IQ had been reported as being 58. (R. 509.) ⁵ Also, during the federal proceedings against the appellant, Dr. Mark Hazelrigg, a clinical psychologist, testified that testing had shown that the appellant had a full scale IQ of 51, although he questioned the accuracy of that assessment. (C.R. 2834–35.) Further, Dr. Wilburn H. Rivenbark III, a clinical psychologist who had evaluated the appellant before his trial, testified during the evidentiary hearing that, “[B]ased on some of the screening that I did I estimated that his intelligence probably was in the range of mild retarded, borderline, somewhere in that range.” (R. 130.) ⁶ However, there were other indications that the appellant had an IQ that was greater than 70.

Our review of the appellant's arguments is further hampered because the circuit court excluded the testimony of Dr. Charles Golden, a clinical neuropsychologist, who was prepared to testify during the evidentiary hearing about the appellant's low IQ, his mental retardation, his intellectual and emotional deficits, and the existence of brain damage. On the day Dr. Golden was scheduled to testify, the State filed a motion in limine seeking to exclude his testimony. After conducting a hearing on the motion, the circuit court excluded Dr. Golden's testimony on the ground that a neuropsychologist could not testify concerning the cause of brain damage. (C.R. 1146.) However, the appellant asserts that Dr. Golden was not going to testify about the cause of his brain damage. Rather, h...