McMillian v. State

• Decision Date: 23 February 1993
• Docket Number: 1 Div. 864
• Citation: 616 So.2d 933
• Parties: Walter McMILLIAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 933

616 So.2d 933

Walter McMILLIAN v. STATE.

1 Div. 864.

Court of Criminal Appeals of Alabama.

Feb. 23, 1993.

Bryan Stevenson, Michael O'Connor, Bernard E. Harcourt, Montgomery, for appellant.

William D. Little, Asst. Atty. Gen., for the State.

ON RETURN TO REMAND

PATTERSON, Judge.

The appellant, Walter McMillian, was jointly indicted with Ralph Bernard Myers in a two-count indictment on December 11, 1987, in Monroe County, for the offense of murder made capital because it was committed during a robbery in the first degree, a violation of § 13A-5-40(a)(2), Code of Alabama 1975. At his arraignment on December 14, 1987, he pleaded not guilty and moved to sever his case from Myers's and to change venue because of pretrial publicity. His motions were granted. His case was severed from Myers's and it was transferred to Baldwin County for trial. On August 17, 1988, a jury found him guilty of the capital offense charged in the indictment, and he was sentenced to death. Myers, whose case was pending at the time of McMillian's trial, testified for the state, implicating McMillian in the commission of the crime. For a recitation of the facts of the case, see McMillian v. State, 570 So.2d 1285, 1287 (Ala.Cr.App.1990).

On original submission, we remanded the case to the trial court with instructions that that court conduct an evidentiary hearing to determine what, if any, agreements had been made between the state and its witnesses Bill Hooks, Jr., and Myers, that afforded the witnesses any consideration or favors in return for their testimony and cooperation, and if any such agreements had been made, to determine whether that information had been furnished to the appellant before trial or whether the appellant was aware of such information prior to trial. The trial court complied with our instructions and duly filed its return. On re-submission, we affirmed McMillian's conviction and his sentence to death. McMillian v. State, 594 So.2d 1253 (Ala.Cr.App.1991).

Approximately five months after Myers testified in the appellant's trial, he pleaded guilty to the lesser included offense of robbery in the third degree and was sentenced as a habitual offender to 30 years' imprisonment. After Myers was incarcerated and while McMillian's appeal was pending in this court, Myers recanted his testimony. He told the appellant's trial counsel that his testimony against McMillian was false, that he knew nothing about the crime, that he was not present when the crime was committed, that he had been told what to say by certain law enforcement officers, and that he had testified falsely against McMillian because of pressure from the officers. The appellant then filed a petition in the trial court for post-conviction relief, pursuant to A.R.Crim.P. 32, alleging that a key state witness had recanted his testimony, that the appellant's conviction had been obtained by perjured testimony, and that the evidence of perjury was newly discovered. He also alleged in his petition that the state had violated his constitutional rights by withholding exculpatory and impeachment information required to be disclosed by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

While McMillian's direct appeal was pending in the Alabama Supreme Court on certiorari review, the state, with the agreement of the appellant, moved that this cause be remanded to the trial court for an evidentiary hearing on the Rule 32 petition's allegation that Myers's testimony was perjured and that the trial court's disposition of this issue be considered as part of the direct appeal. The Supreme Court granted the motion and remanded the case to us with instructions to remand the case in accordance with the state's motion. Ex parte McMillian, 594 So.2d 1288 (Ala.1992). We remanded the case to the trial court with instructions that that court conduct an evidentiary hearing to determine whether the appellant's conviction was obtained by perjured testimony as averred in his petition, and upon completion of the hearing to make due return regarding all proceedings, along with a transcript of the hearing, to this court. We also instructed the trial court to dismiss the petition after completion of the proceedings because the disposition of the perjury issue raised in the petition would be considered as part of the instant appeal. McMillian v. State, 594 So.2d 1289 (Ala.Cr.App.1992).

The trial court conducted the evidentiary hearing as instructed, and, in the interest of judicial economy, properly received evidence on all issues raised in the Rule 32 petition, which included not only the issue of whether the appellant's conviction had been obtained by the alleged perjured testimony of Myers, but also the issue of whether the state had withheld information in violation of Brady and Giglio. Upon completion of the hearing, the trial court held that the evidence was insufficient to prove that Myers had perjured himself at the trial, and it entered its order to that effect. The trial court did not address the Brady and Giglio issues, obviously because of our mistake in inadvertently limiting the trial court's review to the perjury issue only.

In order to avoid further delay and in the interest of judicial economy, we again remanded the case to the trial court by unpublished order on December 14, 1992, with instructions for it to consider the Brady and Giglio issues and to make due return of its findings to this court. The trial court filed its return on January 11, 1993, which reflects its order denying the appellant's Brady and Giglio claims. The order reads, in part, as follows:

"Evidence was received on these issues and the court finds no credible evidence to support the contentions of defendant.... The defendant has failed to provide adequate proof of any intent by the State to deprive him of material to which he was entitled which was known to the state, and his claims under these theories are due to be denied."

The appellant appeals the orders of the trial court denying him the relief sought in his petition, and raises two issues that we will now address.

I.

First, the appellant contends that he is entitled to a new trial because of newly discovered evidence that the state obtained the appellant's conviction by using perjured testimony. In arguing for a reversal, he relies on Ex parte Frazier, 562 So.2d 560 (Ala.1989), and on A.R.Crim.P. 32.1(e). This contention is based upon Myers's recantation of his trial testimony.

Briefly, Myers gave the following testimony for the state at the appellant's trial, in return for a promise that he would be permitted to plead guilty to a lesser noncapital offense: On November 1, 1986, the appellant asked him to drive the appellant from Evergreen to Monroeville to "take care of some business." Myers agreed and drove the appellant to Monroeville in the appellant's green Chevrolet truck. Upon arriving in Monroeville, the appellant directed him to park next to Jackson Cleaners, a dry cleaners. The appellant got out of the truck, said he would be back in a minute, and went into Jackson Cleaners. In a short while, Myers heard "popping noises" like firecrackers coming from inside the building, and he got out of the truck and went into the building. He saw the appellant kneeling behind the counter, taking money out of a paper sack, and putting it in a brown "zip-up case." He also saw a young girl lying on the floor. The appellant had a small caliber automatic pistol in his hand. When the appellant saw Myers, he grabbed him and shoved him against the wall and told him that, if he ever said anything about what he had seen, the appellant would kill Myers's wife and children. He heard the voice of another person in the back of the dry cleaners, and he observed a white man with his back toward Myers, carrying in his hand something that looked like a piece of pipe. The appellant ordered Myers to go outside and wait. Myers returned to the truck, and a few minutes later the appellant came out and got into the truck. He was carrying a brown satchel that was "bulging out" and appeared to contain a gun. The appellant ordered Myers to drive away, and they proceeded toward Evergreen. On the way to Evergreen, the appellant told Myers to keep his mouth shut or he would "wind up being dead."

Unquestionably, Myers was the key witness for the prosecution. Without his testimony, the state could not have obtained a conviction. His credibility was the most important issue in the case. The only evidence offered by the state, other than the testimony of Myers, that tended to connect the appellant with the commission of the crime was the testimony of Joe Hightower and Bill Hooks, Jr. Hightower testified that, "sometime up in the morning" on the day that the crime was committed, he passed Jackson Cleaners and saw the appellant's truck "sitting at the cleaners." He stated that he was familiar with the truck and that it was a low-rider type, sporty, and "souped up." He further testified that when he arrived home about noon or 1:00 p.m., his wife told him that she had heard about an incident at the cleaners. Bill Hooks, Jr., testified that he passed the cleaners on the day of the incident "about the middle of the morning" and saw the appellant's truck parked there. He too testified that he was familiar with the truck, and he described it as green, low, and "down to the ground." He testified that he saw Myers in the truck on the driver's side and that he saw the appellant getting into the truck. He stated that the truck "speeded out" and that, about five minutes later, he heard the sirens of the police and an ambulance going to Jackson Cleaners.

The evidence against the appellant was circumstantial. His defense consisted of attempts to cast doubt upon the credibility of the state's witnesses, particularly Myers, and to establish an alibi. The state presented evidence on...