Bell v. State

• Decision Date: 30 March 1990
• Docket Number: 5 Div. 622
• Citation: 565 So.2d 1244
• Parties: Randy Turpin BELL, alias Randy Cole v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1244

565 So.2d 1244

Randy Turpin BELL, alias Randy Cole v. STATE.

5 Div. 622.

Court of Criminal Appeals of Alabama.

March 30, 1990.

Rehearing Denied May 11, 1990.

Certiorari Denied June 22, 1990

Alabama Supreme Court 89-1311.

J.T. Simonetti, Jr., Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Randy Turpin Bell appeals from the denial of his petition seeking post-conviction relief under Rule 20, A.R.Crim.P.Temp. Counsel represented this appellant at a hearing conducted in circuit court and, following the hearing, which was conducted on the issue of newly discovered evidence that would set aside his original conviction for capital murder, the trial court entered its order and judgment denying relief, and this appeal follows.

This appellant was initially convicted of capital murder in the Circuit Court of Chilton County, Alabama. Following that conviction, the cause was appealed to this court, where the same was affirmed in an opinion reported as Bell v. State, 475 So.2d 601 (Ala.Crim.App.1984), and, thereafter, affirmed by the Supreme Court of Alabama in an opinion reported as Ex parte Bell, 475 So.2d 609 (Ala.1985).

The appellant then filed a petition for writ of certiorari in the Supreme Court of the United States, which court denied same in an order reported as Bell v. Alabama, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985).

Thereafter, the appellant filed a petition for writ of error coram nobis in the Circuit Court of Chilton County, alleging certain constitutional violations that occurred before and during his original trial. That cause was then set for an evidentiary hearing before the original trial judge who heard the cause and, following a full evidentiary hearing, dismissed and denied the petition in an order and judgment that is reported following this court's opinion on appeal therefrom. See Bell v. State, 518 So.2d 840 (Ala.Crim.App.1987), cert. denied, 518 So.2d 840 (Ala.1988). A petition for writ of certiorari was then filed in the Supreme Court of the United States and the same was there denied in an order reported as 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 611 (1988).

While the appeal of the appellant's coram nobis petition was proceeding in the appellate courts, appellant filed a second petition in September 1987. This petition was for post-conviction relief under Rule 20 of the Temporary Alabama Rules of Criminal Procedure. This petition is based upon a claim of newly discovered evidence. A hearing was ordered on this for March 1989, and, thereafter, Circuit Judge John Bush issued his order denying the requested relief. It is from this final order of Judge Bush that this appeal is taken.

I

Insofar as any allegation made with reference to the newly discovered evidence claim, we adhere completely to the views heretofore expressed in the opinion of this court on original appeal and reported as Bell v. State, 475 So.2d 601, aff'd, 475 So.2d 609 (1985). Likewise, we adhere completely to the views heretofore expressed with reference to the previous claims made at the original trial and conviction in the opinion of the court reported as Bell v. State, 518 So.2d 840 (1987), cert. denied (1988).

We have carefully gone over the trial record again, including the original trial record, with reference to the appellant's contentions concerning the ineffective assistance of counsel on first appeal as a matter of right in accordance with Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). See also Harrell v. State, 526 So.2d 646 (1988), cert. denied, 526 So.2d 646 (Ala.), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 347 (1988).

Our own independent search in this cause leads us to the conclusion that the circuit court's prior findings of fact and conclusions of law, which are attached as Exhibit A to the original coram nobis proceeding and are reported in Bell v. State, 518 So.2d 840, are correct. The views heretofore expressed in that opinion are hereby reaffirmed in full. See Weeks v. State, 456

So.2d 395 (Ala.Crim.App.1983), aff'd, Ex parte Weeks, 456 So.2d 404 (Ala.1984), cert. denied, Weeks v. Alabama, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985). See also, Weeks v. State, [Ms. 5 Div. 484, December 1, 1989] --- So.2d ----.

II

A claim of newly discovered evidence was dealt with in the Rule 20 petition. It was claimed that the prior testimony of certain witnesses was incorrect and that they were now testifying as to other matters, which would entitle this appellant to a new trial.

As pointed out in the order and judgment of the circuit court, attached hereto as Exhibit A and made a part hereof, the recantation by certain witnesses as to their testimony heretofore given is indeed contradictory and refuted, so that such is not worthy of belief. As noted by the circuit court, such recanted testimony was not credible and should not be believed.

We agree with this position and determine that, in fact, this appellant has wholly failed to prove his theory of newly discovered evidence that would entitle him to a new trial. To the contrary, we determined that the State's testimony was accurate and truthful and has been so determined by the trial court, and we do affirm that determination.

In an abundance of caution, we have carefully reviewed each allegation and assertion made by Bell. We have carefully considered the work of his counsel on this appeal. We find that this appellant was fully and fairly represented, not only at original trial and on original appeal, but also at the prior coram nobis proceeding and hearing and the appeal therefrom and also at the Rule 20 hearing on this petition and in the appeal presently before this court. We commend the attorneys involved as representing the best traditions of the Bar of the State of Alabama. We reject the appellant's contention as to inadequate and ineffective representation as being utterly without merit, as a matter of fact or law.

We find no error in this appeal. We have carefully reviewed each allegation and the legal arguments offered in support thereof.

For the reasons stated herein, the judgment of the Circuit Court of Chilton County, Alabama, denying the petition under Rule 20, A.R.Crim.P.Temp., seeking post-conviction relief is due to be, and the same is hereby, affirmed.

AFFIRMED.

All the Judges concur.

EXHIBIT A

In the Circuit Court of Chilton County, Alabama

Randy Turpin Bell, Petitioner,

v.

State of Alabama, Respondent.

Case No. CC 83-35.61.

ORDER ON RULE 20 PETITION

This matter is before the Court upon Bell's Petition for Relief from Conviction or Sentence. The Petitioner filed a Petition for Writ of Error Coram Nobis on May 11, 1986, and the Hon. Walter C. Hayden, Jr., who heard and tried the underlying case of State of Alabama v. Randy Turpin Bell, alias Randy Cole, held an evidentiary hearing on December 16, 1986. On March 5, 1987, Judge Hayden denied the Petition for Writ of Error Coram Nobis.

On September 17, 1987, Petitioner filed the petition now before the Court and an evidentiary hearing was held on March 14, 1989.

As noted above, the Hon. Walter C. Hayden, Jr., presided over Petitioner's original case in which Bell was convicted of capital murder for the death of Charles Mims and was sentenced to death. Just prior to the instant Petition being filed, Judge Hayden became stricken with cancer and never fully recovered. Judge Hayden died on January 15, 1989, one day prior to his retirement. Approximately one week prior to Judge Hayden's death this Judge assumed responsibility for this case and set the same for an evidentiary hearing.

On March 14, 1989, the Petitioner appeared with Counsel, Hon. J.T. Simonetti, Jr., and testimony was received regarding the merits of his petition in which he primarily raised a claim of newly discovered evidence. Also present was Hon. John Gibbs, Asst. Attorney General. Testimony was received from Ronald Wadsworth, Michael Joe Hubbard, Billy Alston, Hollis Gandy, Benny Mims, and John Perdue.

The Court has now considered the testimony of all witnesses who testified at the hearing, the proposed findings of fact and conclusions of law submitted by both parties, the transcript of an interview with Ronald J. Wadsworth taken March 23, 1987 at Kilby Prison, the transcript of the Error Coram Nobis hearing held December 16, 1986, and a substantial portion of the transcript of the original trial which occurred in May of 1983, as well as the applicable law.

Bell's conviction for the capital murder of Charles Mims and sentence of death were affirmed on appeal. Bell v. State, 475 So.2d 601 (Ala.Crim.App.1984), Aff'd, 475 So.2d 609 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985). The denial of Bell's petition for Coram Nobis relief was also affirmed on appeal. Bell v. State, 518 So.2d 840 (Ala.Crim.App.1987), cert. denied, No. 87-296 (Ala.), cert. denied, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 611 (1988).

Legal Standard

Temporary Rule 20.1(e) of the Alabama Rules of Criminal Procedure provides that Rule 20 relief may be had on a claim that:

(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 his counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Temporary Rule 13, 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; and

(2) the facts are not merely cumulative to other facts that were known; and

(3) the facts do not merely amount to impeachment evidence; and

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

(5) the facts establish that petitioner is innocent of the crime for which he was...