Acklin v. State

• Decision Date: 15 December 2017
• Docket Number: CR–14–1011
• Citation: 266 So.3d 89
• Parties: Nicholas Bernard ACKLIN v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

266 So.3d 89

Nicholas Bernard ACKLIN

v.STATE of Alabama

CR–14–1011

Court of Criminal Appeals of Alabama.

December 15, 2017

Rehearing Denied April 20, 2018

Certiorari Denied June 15, 2018

Alabama Supreme Court 1170677

Patrick Mulvaney and Katherine Chamblee, Atlanta, Georgia, for appellant.

Luther Strange and Steve Marshall, attys. gen., and John A. Selden, asst. atty. gen., for appellee.

Lisa W. Borden, Birmingham, for amici curiae Former Judges of Alabama Appellate Courts (Ernest Hornsby, Ralph Cook, and William Bowen ) and Former Presidents of the Alabama State Bar (Ernest Hornsby, William Clark, and Robert Segall ), in support of the appellant.

JOINER, Judge.

Nicholas Bernard Acklin, an inmate on death row at Holman Correctional Facility, appeals the Madison Circuit Court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. We affirm.

On October 23, 1998, Acklin was convicted of one count of capital murder for killing Charles Lamar Hemphill, Michael A. Beaudette, Johnny Couch, and Brian Carter pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala. Code 1975, and two counts of attempted murder as to Ashley Rutherford and Michelle Hayden, see § 13A–6–2 and § 13A–4–2, Ala. Code 1975. The trial court sentenced Acklin to consecutive sentences of 20 years' imprisonment for his convictions for attempted murder. As to his conviction for capital murder, the jury recommended, by a vote of 10–2, that Acklin be sentenced to death; the trial court accepted that recommendation and sentenced Acklin to death.

In Acklin's direct appeal, we quoted the following relevant facts of the underlying crimes from the trial court's sentencing order:

" ‘Late on the night of September 25, 1996, Nicholas Bernard Acklin and two companions, all heavily armed, entered the home of Ashley Rutherford on University Drive in Huntsville, Madison County, Alabama. Acklin, Joseph Wilson, and Corey Johnson held seven people at gunpoint in a 13' x 18' room and, for nearly two hours, assaulted, tortured, and humiliated them. Then, shortly before midnight, Acklin and Wilson fired 19 rounds of 9mm ammunition, shooting 6 of the 7 victims in or about the head. Four of the six victims died, two survived the shooting, and one victim escaped.

" ‘The events giving rise to these slayings occurred approximately one week before the murders took place. At this time, Joseph ("Joey") Wilson and Corey Johnson, while visiting the home of Ashley Rutherford, stole a cellular telephone and a small bag of marijuana. The theft of the cellular telephone prompted Rutherford and the owner of the phone, Lamar Hemphill, to file a police report with the Huntsville Police Department. As a result of the police report being filed, Wilson was questioned by the police regarding the theft of the phone. Once Wilson learned that a police report had been filed, he became angry. On the night of September 25, 1996, Wilson, Acklin, and Johnson went to Ashley Rutherford's home seeking revenge against those persons they deemed responsible for filing the report.

" ‘Early in the evening of September 25, 1996, Ashley Rutherford's fiancee (Michelle Hayden) and two of his friends (Brian Carter and Lamar Hemphill) sat in Rutherford's garage apartment watching television and awaiting Rutherford's return from work. Later, Michael Beaudette, another friend of Ashley Rutherford, arrived and joined Hayden, Carter, and Hemphill in watching television and socializing. At approximately 10:00 p.m., Mike Skirchak and Johnny Couch, while driving past Rutherford's home on University Drive, noticed Michael Beaudette's car and decided to stop and talk for awhile with Beaudette and the others. At approximately 10:05 p.m., Skirchak and Couch decided to leave. As the two young men exited Rutherford's home, they were met by Nicholas Acklin, Joey Wilson, and Corey Johnson, who forced them back inside the garage apartment.

" ‘Once inside the apartment, Acklin, Wilson, and Johnson began asking repeatedly, "Who filled out the warrant?" When no one would give them a satisfactory answer, they brandished handguns and began physically assaulting Skirchak, Couch, Beaudette, Carter, and Hemphill. Specifically, these five young men were kicked, slapped, punched, spat on, and beaten with a whiskey bottle by Wilson and Johnson. A few times during these assaults, Acklin took Michelle Hayden outside and made sexual advances towards her. Acklin fondled Hayden's breasts and repeatedly asked her to pull down her pants. After approximately an hour of the aforementioned behavior, Ashley Rutherford arrived home from work and he was immediately confronted by Johnson, who forced him into the apartment. Once inside, Rutherford was also interrogated about the police report. He, too, was beaten and threatened. In fact, as the night progressed, two of the three assailants, Nicholas Acklin and Joey Wilson, grew increasingly violent and more demeaning. For example, Acklin placed a .357 magnum revolver in Rutherford's mouth and shoved it into his throat until Rutherford gagged. Acklin also placed Michael Beaudette in a headlock and placed the same .357 magnum revolver under his chin. Wilson kicked and stomped Johnny Couch until he was almost unconscious and then cut his ponytail off with a pair of scissors. A short while after this incident, Acklin made Michelle Hayden accompany him outside while he stole Brian Carter's car stereo from Carter's car. When Acklin returned to the overcrowded apartment, he threw a pocket-knife at Brian Carter's feet. Then, Acklin turned to Wilson, who was holding a Ruger 9mm semi-automatic handgun and proclaimed, "Look, he has a knife!" Both Acklin and Wilson continued humiliating the victims by making them do self-degrading things, such as take off their pants and sit exposed in their underwear. At one point in the evening, Wilson placed his handgun on a dresser and dared anyone to try and grab it. Furthermore, following one of the several occasions that Acklin took Michelle Hayden outside, Acklin went back inside the apartment and told her fiance, Ashley Rutherford, that his girlfriend had just performed oral sex on him.

" ‘As the night progressed, all seven victims asserted that they did not know anything about a warrant being filed against Wilson. However, Rutherford and Hemphill did admit to their attackers that a police report had been filed for the stolen cellular phone, but no one had sworn out a warrant. Despite the assertions by Rutherford and Hemphill, as well as from the others, the anger of both Acklin and Wilson rose to a dangerous crescendo. Just before midnight, Acklin and Wilson made all seven victims give them their driver's licenses and identification cards. At this point, Corey Johnson tried to calm Acklin and Wilson down by telling them that the victims were not going to talk and that they didn't have to shoot anyone. Unfortunately, Acklin and Wilson ignored Johnson and began shouting for someone to go and start the car. After yelling back and forth to each other to go start the car, Acklin finally left Wilson inside and went to start Wilson's car. At this point, Wilson was holding the seven victims at gunpoint and demanding that someone tell him who filed what he claimed was a warrant against him. When Acklin returned from outside, he was holding one of the two Lorcin 9mm handguns that had been tucked in his waistband earlier that night. As Wilson continued to demand answers to his questions, Acklin proclaimed, "Fuck it," and placed the Lorcin 9mm against the back of Ashley Rutherford's head and fired. Then, in a methodical manner, as each of the other victims sat and watched, Acklin shot Lamar Hemphill once in the head, shot Johnny Couch twice in the head, shot Michael Beaudette once in the head and once in the upper leg, and shot Michelle Hayden in the side of her face, in her arm, and in her abdomen.... Joey Wilson shot Brian Carter six times in the neck and chest.... Mike Skirchak ran out of the back door of the apartment without any gunshot wounds

.

" ‘After having fired 19 rounds of ammunition inside the apartment, Acklin, Wilson, and Johnson fled. Ashley Rutherford, the first person shot by Acklin, laid in a pool of his own blood and pretended to be dead until he was sure that his attackers had left the apartment. Once he knew that they were gone, Rutherford left the garage apartment and went into the main part of the house to get help from his grandmother. After he told his grandmother to call an ambulance, Rutherford went back to assist his fiancee Hayden, who was lying in the doorway leading to the main part of the house. At approximately 12:30 a.m., Madison County emergency medical technicians arrived on the scene and determined that Michael Beaudette, Brian Carter, and Johnny Couch were already dead. Michelle Hayden was alive, but critically wounded, and Lamar Hemphill died minutes after medical technicians arrived.’ "

Acklin v. State, 790 So.2d 975, 982–84 (Ala. Crim. App. 2000) (quoting Trial C. 280–84¹ ).

In relevant part, the trial court found that two aggravating circumstances existed: (1) the defendant knowingly created a great risk of death to many persons and (2) the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. See § 13A–5–49, Ala. Code 1975. With regard to the second aggravating circumstance, the sentencing order states, in relevant part:

"Prior to the discharge of the two weapons, the victims were subjected to threats and intimidation. The victims were restrained at gunpoint and required to remove various portions of their clothing (primarily their pants). Joey Wilson kicked and stomped Johnny Couch until he was almost unconscious, and to further degrade and disfigure him, he cut off his pony tail with a pair of scissors.⁴ Throughout the evening Skirchak (the victim who escaped), Couch, Beaudette, Carter and Hemphill were repeatedly kicked, slapped, punched, spat on, and

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