Clark v. State, CR–12–1965.

CourtAlabama Court of Criminal Appeals
Citation196 So.3d 285
Docket NumberCR–12–1965.
Parties Charles Gregory CLARK v. STATE of Alabama.
Decision Date13 March 2015

196 So.3d 285

Charles Gregory CLARK
STATE of Alabama.


Court of Criminal Appeals of Alabama.

March 13, 2015.
Rehearing Denied May 29, 2015.

Certiorari Denied Nov. 20, 2015.

Alabama Supreme Court 1140975.

196 So.3d 291

Richard Stephen Jaffe, Birmingham; and Stephen Andrew Strickland, Birmingham, for appellant.

Luther Strange, atty. gen., and James R. Houts, asst. atty. gen., for appellee.

KELLUM, Judge.

Charles Gregory Clark appeals the circuit court's denial, after a hearing, of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his 1999 conviction for capital murder and his resulting sentence of death.

In 1999, Clark was convicted of murder made capital because it was committed during the course of a robbery, see § 13A–5–40(a)(2), Ala.Code 1975. The jury recommended by a vote of 11–1 that Clark be sentenced to death. The trial court followed the jury's recommendation and sentenced Clark to death for his capital-murder conviction. On appeal, this

196 So.3d 292

Court initially remanded the case for the trial court to correct deficiencies in its sentencing order. Clark v. State, 896 So.2d 584 (Ala.Crim.App.2000). On return to remand, this Court affirmed Clark's conviction and sentence of death. Clark v. State, 896 So.2d 584 (Ala.Crim.App.2003) (opinion on return to remand and on application for rehearing). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on October 1, 2004. The United States Supreme Court denied certiorari review on June 20, 2005. Clark v. Alabama, 545 U.S. 1130, 125 S.Ct. 2930, 162 L.Ed.2d 870 (2005).

Clark, through counsel, timely filed his Rule 32 petition on September 12, 2005, raising numerous claims, including claims of ineffective assistance of trial and appellate counsel. On December 27, 2005, the State filed an answer to Clark's petition, arguing that all of Clark's claims were insufficiently pleaded, meritless, and/or precluded. On January 13, 2006, Clark filed a reply to the State's answer and a motion to amend, in which he raised additional claims. The circuit court granted Clark's motion to amend. On February 16, 2006, the State filed an answer to the motion to amend, arguing that the claims in the motion to amend were insufficiently pleaded and/or precluded. On March 1, 2006, Clark filed an “Outline of His Rule 32 Petitions,” in which he expressly abandoned some of the claims raised in his petition and motion to amend and provided a brief synopsis of the claims he wished to pursue. (C. 449.) On June 12, 2006, the circuit court conducted an evidentiary hearing on Clark's petition. On or about April 1, 2013, Clark filed what he styled as his “Closing Argument.” (C. 468.) On July 23, 2013, the circuit court issued an order denying Clark's petition.1 This appeal followed.

On direct appeal, this Court set out the facts of the crime as follows:

“The evidence adduced at trial indicated the following. On the evening of February 13, 1998, Clark went to the apartment of his girlfriend, Rhonda Kenny, in Pensacola, Florida. Kenny testified that Clark had driven to her apartment that evening at approximately 8:00 p.m. in his stepfather's pickup truck. When Clark arrived, Kenny said, he was ‘high’ on crack cocaine. Kenny testified that, at that time, she and Clark had known each other for approximately a year and that they had often smoked crack cocaine together. According to Kenny, both she and Clark were employed and they both used their income to purchase crack cocaine. In addition, Kenny said, Clark often pawned his property and property belonging to his parents to obtain money to purchase crack cocaine. Approximately one week before February 13, 1998, Kenny said, Clark received an income-tax refund of $2,800; Kenny stated that Clark used the entire amount to purchase crack cocaine. At some point during the evening of February 13, 1998, Kenny said, Clark left her apartment and then later returned. Kenny testified that when Clark returned he was walking and he told her that the truck had run out of gas and that he had walked back to her apartment. Kenny stated that she and Clark stayed up all night smoking crack cocaine and that Clark was ‘high’ when he left her apartment at approximately 5:00 a.m. on February 14, 1998, driving her Toyota Celica automobile. Kenny testified that she did not think that Clark was able to drive safely, but that
196 So.3d 293
she gave him the keys to her car anyway. Just before Clark left her apartment, Kenny said, he borrowed $40 from her brother-in-law, which, she said, Clark promised to pay back the next day. Despite having borrowed $40, Clark told Kenny that he was going to drive to Seminole to borrow more money. Kenny testified that she did not see Clark carrying a knife that morning and that she had never known Clark to carry a knife.

“James E. Iles testified that on February 14, 1998, at approximately 7:20 a.m., he was driving on Fort Morgan Road in Baldwin County on his way to go fishing when he passed a gasoline station/convenience store owned and operated by William Fuller Ewing. Iles stated that he noticed two people outside the store; he said that one person was on his hands and knees in the parking lot and the other was walking toward a car parked at the gasoline pumps. As he passed the store, Iles said, he saw one of the men get into the car near the pumps and drive away in the same direction Iles was traveling. Iles testified that he decided to turn around and go back to the store to see what was happening. When he turned around and started back toward the store, Iles passed the car that had been parked near the gas pumps. At that point, Iles said, he changed his mind about going back to the store, and, instead decided to follow the car that had been at the store in order to identify it. Iles turned around again and followed the car. Iles got the license tag number of the car and then pulled into another gas station/convenience store and telephoned emergency 911.

“At approximately 7:45 a.m., Huey Mack, Jr., chief investigator for the Baldwin County Sheriff's Department, received a dispatch to go to Ewing's store on Fort Morgan Road. When he arrived at the scene, Investigator Mack said, he saw Ewing's body on the ground in the doorway to the store; he stated that Ewing was positioned so that his feet were toward the gas pumps in front of the store and his head and chest were on the threshold of the door. Ewing had been stabbed numerous times. Over $600 in cash was found in Ewing's billfold in his pants pocket. Investigator Mack testified that Ewing's body was covered in blood and that blood on the ground extended approximately six feet outside the store and six feet inside the store. In addition, several droplets of blood were found on the check-out counter and on the floor behind the check-out counter. Investigator Mack also discovered a pack of cigarettes with a clump of what appeared to be bloody hair around it and a baseball-style cap on the floor in the entrance to the attendant's area behind the check-out counter. A stick was also found standing on end against the wall in the corner behind the counter. The cash register was on the floor in front of the check-out counter and there were loose coins on the floor and on the counter. The cash-register tape indicated that the last transaction rung up on the register was the previous evening, February 13, 1998, at 8:52 p.m. One of the gasoline pumps in front of the store was on and the hose and nozzle of the pump were lying on the ground; that same pump indicated that approximately $14 in gas had been pumped from it. In addition, a shoe print was discovered near the gas pumps.

“Dr. Leroy Riddick, a medical examiner with the Alabama Department of Forensic Sciences who was accepted by the trial court as an expert in forensic pathology, performed the autopsy on Ewing.
196 So.3d 294
Dr. Riddick testified that Ewing suffered 15 stab wounds, 17 superficial cuts, and several scrapes on his body, including on his back, his chest, his face, his arms, and his hands. Dr. Riddick stated that the wounds were most likely caused by a knife and that, because of the presence and amount of blood in each wound, in Dr. Riddick's opinion, Ewing was alive when each wound had been inflicted; however, Dr. Riddick said that he could not determine the order in which the wounds had been inflicted. According to Dr. Riddick, the two stab wounds in the back were relatively deep wounds —they, in fact, struck bone—and ‘would take some degree of force.’ (R. 800.) In addition, Dr. Riddick stated that one of the stab wounds to the chest punctured Ewing's heart. Dr. Riddick testified that the wound to the heart would have been fatal within a few minutes. Dr. Riddick also stated that there were a few wounds on Ewing's hands and arms which he described as defensive wounds ; however, Dr. Riddick stated that the lack of a significant number of defensive wounds on Ewing's hands and arms indicated that Ewing and the perpetrator were in very close proximity—i.e., closer than two feet—struggling at the time of the stabbing.

“William Bentley Cowan, a corporal with the Gulf Shores Police Department, testified that on the morning of February 14, 1998, he was informed by the police-department dispatcher about a possible assault or homicide at a gas station on Fort Morgan Road. Cpl. Cowan then drove to Fort Morgan Road in an attempt to find the gas station. He stopped at the first gas station he saw—Mo's Landing, which is approximately 8 to 10 miles away from Ewing's store. At Mo's Landing, Cpl. Cowan was informed that a silver Toyota Celica automobile that had just driven past Mo's Landing was involved in the incident at Ewing's store. Cpl. Cowan reported the automobile and then drove east on Fort Morgan Road in an attempt to find it. Cpl. Cowan testified that, as he was looking for the car, he heard over the radio that another officer

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