Barbour v. State

• Decision Date: 25 June 2004
• Citation: 903 So.2d 858
• Parties: Christopher D. BARBOUR v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

903 So.2d 858

Christopher D. BARBOUR v. STATE of Alabama.

CR-00-1731.

Court of Criminal Appeals of Alabama.

June 25, 2004.

Rehearing Denied August 13, 2004.

Certiorari Denied January 7, 2005.

Miriam Gohara and George H. Kendall, New York City, New York, for appellant.

William H. Pryor, Jr., atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for appellee.

Alabama Supreme Court 1031762.

WISE, Judge.

Christopher D. Barbour appeals from the circuit court's denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P. On June 24, 1993, Barbour was convicted of three counts of capital murder for the killing of Thelma Bishop Roberts. The murder was made capital because it was committed during the course of a first-degree rape, a first-degree burglary, and a first-degree arson. See § 13A-5-40(a)(3), (a)(4), and (a)(9), Ala. Code 1975. After a sentencing hearing, the jury recommended, by a vote of 10-2, that Barbour be sentenced to death. The trial court accepted the jury's recommendation and sentenced Barbour to death by electrocution. This Court affirmed Barbour's convictions on direct appeal. See Barbour v. State, 673 So.2d 461 (Ala.Crim. App.1994).

Barbour petitioned the Alabama Supreme Court for certiorari review. The Supreme Court granted his petition, pursuant to Rule 39(c), Ala.R.App.P., as it read before it was amended effective May 19, 2000.¹ On August 18, 1995, the Supreme Court affirmed Barbour's conviction and sentence. See Ex parte Barbour, 673 So.2d 473 (Ala.1995), and a certificate of judgment was issued on November 7, 1995. Thereafter, Barbour petitioned the United States Supreme Court for certiorari review. On July 24, 1996, the United States Supreme Court denied Barbour's petition for the writ of certiorari. See Barbour v. Alabama, 518 U.S. 1020, 116 S.Ct. 2556, 135 L.Ed.2d 1074 (1996).

On March 4, 1997, Barbour filed a Rule 32 petition, challenging his capital-murder convictions and death sentence. With the assistance of counsel, Barbour filed an amendment to his Rule 32 petition on September 10, 1997. After the State filed a response to Barbour's petition, the circuit court conducted an evidentiary hearing and heard evidence regarding the claims raised in the petition. On April 21, 1998, the circuit court entered a lengthy written order denying the petition. (C. 409-467.) Barbour did not appeal the denial of his petition.

On September 8, 2000, the State asked the Alabama Supreme Court to set an execution date for Barbour. On April 4, 2001, Barbour filed a "Motion for Preservation of DNA Evidence" and a "Motion to Reopen Rule 32 Proceeding." On April 20, 2001, the Alabama Supreme Court set an execution date of May 25, 2001, for Barbour. On April 24, 2001, in response to Barbour's motion to reopen the Rule 32 proceeding, the State filed a pleading entitled "Answer and Motion to Dismiss Barbour's Successive Rule 32 Petition for Relief from Conviction and Sentence." The circuit court² treated the motion to reopen as a Rule 32 petition and summarily denied it on May 16, 2001. (C. 631-53.) On May 18, 2001, Barbour filed a motion in the Alabama Supreme Court seeking a stay of execution. On May 21, 2001, Barbour filed a notice of appeal to this Court from the denial of his motion to reopen the Rule 32 proceeding. On that same date, he filed a motion for a stay of execution and a petition for a writ of habeas corpus in the United States District Court for the Middle District of Alabama. On May 23, 2001, the district court granted Barbour's motion for a stay pending resolution of his state-court proceeding and his federal habeas corpus proceeding. See Barbour v. Haley, 145 F.Supp.2d 1280 (M.D.Ala.2001). This appeal followed.

This is an appeal from the denial of a collateral petition attacking Barbour's death sentence. In reviewing Barbour's direct appeal, this Court applied a plain-error standard of review. See Rule 45A, Ala.R.App.P. However, we do not apply a plain-error standard when reviewing the denial of a Rule 32 petition in a death case. Hill v. State, 695 So.2d 1223 (Ala.Crim. App.1997). Instead, we apply an abuse-of-discretion standard. "If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition." Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App. 1999) (citing Roberts v. State, 516 So.2d 936 (Ala.Crim.App.1987)). We will reverse a circuit court's findings only if they are "clearly erroneous." Jenkins v. State, [Ms. CR-97-0864, February 27, 2004] ___ So.2d ___, ___ (Ala.Crim.App.2004).

"`"[A] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).... If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).' [Anderson v. City of Bessemer City, N.C.], 470 U.S. [564] at 573-74, 105 S.Ct. [1504] at 1511 [(1985)]."

Morrison v. State, 551 So.2d 435, 436-37 (Ala.Crim.App.1989); see also Giles v. State, [Ms. CR-00-0376, April 30, 2004] 906 So.2d 963, 970-71 (Ala.Crim.App.2004).

Barbour filed this action in the circuit court. According to Rule 32.3, Ala. R.Crim.P., he has the "burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Moreover, the procedural default grounds contained in Rule 32, Ala.R.Crim.P., apply to all cases—even those in which the death penalty has been imposed. See, e.g., Hooks v. State, 822 So.2d 476, 479-81 (Ala.Crim.App.2000).

The State's evidence at Barbour's trial tended to show that on March 21, 1992, 16-year-old William Roberts found the naked and partially burned body of his mother, Thelma Bishop Roberts, lying on the floor of her bedroom at her home on Manley Drive in Montgomery. When the body was found, there was a white plastic trash bag over her head and a knife protruding from her chest. Additionally, the jewelry that Roberts always wore was missing.

An autopsy revealed that Roberts died as a result of multiple stab wounds to the chest. Two of the wounds were inflicted with such force that the knife went all the way through Roberts's body, piercing her back. One of the wounds pierced her left lung and another pierced her heart, causing extensive internal bleeding. In all, Roberts was stabbed nine times. Additionally, the autopsy revealed that Roberts had suffered repeated blows to her head.

Upon questioning by the police, Barbour gave a detailed account of the circumstances surrounding Roberts's murder. He told police that on March 20, 1992, he, Chris Hester, and Mike Mitchell went to see "Koon," a friend of Hester's who lived on Manley Drive. After discovering that Koon was not home, the three went across the street to the Roberts's house. Initially, everyone sat down in the living room and drank beer. Hester and Roberts started talking; however, Roberts subsequently left the living room and went to another part of the house. Shortly after Roberts left the living room, Hester also left the living room. A short while later, Barbour and Mitchell heard loud noises coming from the back of the house and went to investigate. Upon entering a bedroom, they saw that Roberts was naked and Hester was wearing only his pants. Hester struck Roberts, and Barbour and Mitchell began hitting her about the head, causing her to fall to the floor. Barbour and Mitchell held Roberts down while Hester raped her. After Hester got up and pulled on his pants, Barbour told the others that they could not leave because Roberts could identify them. Barbour went to the kitchen and got a knife; he then returned to the bedroom, where he knelt and stabbed Roberts several times. Barbour left the knife in Roberts's body, stood up, walked to the closet, threw some clothes from the closet around her body, and set them on fire. As the three men fled the house, Barbour pulled the smoke detector off of the wall in the hallway and threw it down.

Barbour raises the following claims concerning the denial of his motion to reopen the Rule 32 proceeding, which the circuit court treated as another Rule 32 petition.

I.

Barbour argues that the circuit court erred when it treated his "Motion to Reopen Rule 32 Proceeding" as a successive Rule 32 petition. Specifically, he contends that the court should have allowed him to "reopen" his previous Rule 32 petition so that he could amend that timely filed petition in order to present additional claims. Rule 32, Ala.R.Crim.P., contains no provision that allows for the "reopening" of a Rule 32 petition after an order denying the petition has been entered. Indeed, Rule 32.7(b), Ala.R.Crim.P., states: "Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment." (Emphasis added.) See also Allen v. State, 825 So.2d 264, 268 (Ala.Crim.App.2001), aff'd, 825 So.2d 271 (Ala.2002). Because the circuit court had long since entered its judgment in Barbour's initial Rule 32 petition, Barbour was not entitled to amend that petition.

Barbour's reliance on Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000), aff'd in part, rev'd in part, and remanded, 842 So.2d 726 (Ala.2001); Ex parte A.D.R., 690 So.2d 1208 (Ala.1996); and Longmire v. State, 443 So.2d 1265 (Ala.1982), in...