Davis v. State

• Decision Date: 03 March 2006
• Docket Number: CR-03-2086.
• Citation: 9 So.3d 514
• Parties: Jimmy DAVIS, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

9 So.3d 514

Jimmy DAVIS, Jr. v. STATE of Alabama.

CR-03-2086.

Court of Criminal Appeals of Alabama.

March 3, 2006.

Opinion Overruling Rehearing August 25, 2006.

Certiorari Denied February 16, 2007 Alabama Supreme Court 1051719.

William F. Abrams and Nicole Townsend Bartow, Palo Alto, California; Jack Lahr and Joy L. Langford, Washington, D.C.; and Richard Lee Sharff, Jr., Birmingham, for appellant.

Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for appellee.

Lisa Borden and Anne Wohlfeld, Birmingham, for amici curiae National Association of Social Workers and its Alabama Chapter, for the appellant.

COBB, Judge.

The appellant, Jimmy Davis, Jr., an inmate on death row at Holman Correctional Facility, appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In 1993, Davis was convicted of murdering Johnny Hazel, a gas station attendant at a Direct Oil gasoline service station in Anniston, during the course of a robbery. The jury, by a vote of 11-1, recommended that Davis be sentenced to death. The circuit court followed the jury's recommendation and sentenced Davis to death. Davis appealed. On October 20, 1995, we remanded the case for the circuit court to enter a formal sentencing order. See Davis v. State, 718 So.2d 1148 (Ala.Crim.App.1995). On July 3, 1996, we again remanded the case for the circuit court to conduct a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), hearing. See Davis v. State, 718 So.2d at 1153 (opinion on return to remand). On return to second remand, we affirmed Davis's conviction and death sentence. See Davis v. State, 718 So.2d at 1153 (opinion on second return to remand). The Alabama Supreme Court affirmed our judgment and the United States Supreme Court denied certiorari review. Davis v. State, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999). We issued the certificate of judgment on September 15, 1998. See Rule 41, Ala.R.App.P.

In January 2000, Davis filed a timely Rule 32 petition in the Calhoun Circuit Court attacking his conviction and death sentence. Davis amended his petition in April 2000 and again in July 2001. An evidentiary hearing was held in August 2002. In August 2004, the circuit court issued a 63-page order denying Davis's petition in part and dismissing it in part. This appeal followed.

The circuit court made the following detailed findings of fact in its order sentencing Davis to death:

"At approximately 7:16 p.m. on the evening of March 17, 1993, Anniston Alabama, Police Department Officer Brian Tumlin was dispatched to the Direct Oil gasoline station at the corner of 20th and Noble Streets in Anniston, Calhoun County, Alabama, in response to a report of a shooting inside the small service station building. The officer observed Dewey Waites kneeling over the victim, Johnny Hazel. He also noted three empty shell casings from spent bullets a short distance outside the service station door.

"The report dispatched to Officer Tumlin stated two black males were seen running west on 20th Street after shots were fired. One was reported wearing a black coat and/or a tan coat.

"Sgt. Rocky Stemen of the Anniston Police Department arrived to assist Officer Tumlin and placed three possible witnesses in patrol cars. Johnny Hazel was a 50 year old white male who had worked at the 18th and Noble Street Direct Oil Station as assistant manager for five or six years. He would often be visited by his friend Dewey Waites at the station where Hazel often worked alone. Waites testified that a black male with his face covered walked up to the station doorway at approximately 7:15 p.m., said `Give me your money,' and then fired two shots from a silver or chrome plated automatic pistol at Johnny Hazel. Hazel slumped, then stepped to the phone and began calling the police, but he passed out and fell to the floor. Waites slammed the door shut, locked it and Waites then completed the call to the police. Anniston Rescue Squad personnel treated Hazel at the scene and then transported him to Northeast Alabama Regional Medical Center....

"Dr. Kenneth Elliott Warner, a State Medical Examiner, conducted an autopsy on Johnny Hazel. That examination revealed a gun shot wound to the right chest, as well as another to the left side of the back. Both projectiles passed through Hazel's liver. Two metal projectiles were found, cleaned, sealed, and delivered to David Higgins in Birmingham. Dr. Warner opined that Johnny Hazel died as the result of multiple gun shots.

"Carla Lovell, a neighbor who resided on West 20th Street, heard gunshots on the night of March 17, 1993, and ran to her front porch and saw two men running to the west and called 911. She described the men as two black males with one of the males wearing a tan jacket with a bandanna around his head. She then went to the Direct Oil Station and later talked with the police. She thought the two were between 18 and 25 years of age. Mrs. Lovell's mother-in-law, Betty Lovell, was in a house near her daughter-in-law. She heard two or three shots fired at or near the Direct Oil Service Station. She then saw two black males run around the corner of the station. She observed one of the males wore a light tan coat and that one wore either a bandanna or a hat turned backwards.... Betty Lovell testified that the two ran west on 20th Street past the Gurnee Avenue intersection and then turned south in the alley way in the next block past Gurnee. She went to the station and observed Mr. Dewey Waites and Mr. Hazel locked in the station. She was also later questioned by the police officers on the scene.

". . . .

"Terrance Phillips, a 16-year-old black male, was charged in connection with the robbery and killing of Johnny Hazel. He pleaded guilty to conspiracy to commit robbery of the Direct Oil and received a ten-year sentence. At the time of this trial, he testified he had been released on bond and had applied for probation. On March 17, 1993, Phillips attended high school and around 5:00 p.m., met the defendant, Jimmy Davis, and his cousin, Alphonso Phillips, at the Carver Recreation Center. The three males left Carver Center and walked to the Direct Oil Station at 20th and Noble Streets. He testified that Jimmy Davis possessed a chrome .25 caliber Raven [brand] pistol with a white handle. Davis stated `We're going to hit Direct Gas Station' or `We're going to rob Direct Gas Station.' Plans were discussed in the alley west of Gurnee Avenue. Phillips testified that David stated that `he had the gun and he was going to draw down on the man.' Davis would point the gun at the station operator while Alphonso Phillips was to get the cash money. Terrance Phillips was to serve as a look-out. Terrance crossed the intersection of 20th and Noble Street to the North and proceeded up Noble Street as Alphonso Phillips and Jimmy Davis turned South on to the Direct Oil property. Terrance Phillips testified that he abandoned the criminal enterprise and continued walking north toward his house. After about a block's walk he stated that he heard two or three gunshots; he continued walking to his house at 2307 Moore Avenue. He later left and walked to his grandmother's home at 1711 Moore Avenue. There he encountered Jimmy Davis and Alphonso Phillips.

"Terrance Phillips stated [that] he asked Davis what had happened and that Davis said he told the attendant (Hazel) `Give it up, fuck-nigger' and that the attendant smiled or laughed. He (Davis) shot him at least twice and then he (Davis) took off. Terrance Phillips testified that on that night he wore a black coat with a Los Angles Kings emblem on the back; that Alphonso Phillips wore a blue jeans jacket and that Jimmy Davis wore a pair of black cut-off jean shorts and a dark green shirt with a hood on it."¹

Standard of Review

Davis appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P.

"A post-conviction petition is a collateral attack on a prior criminal conviction by which a defendant can assert that a conviction resulted from the substantial denial of his or her constitutional rights, and the purpose of a post-conviction proceeding is not to appeal the defendant's underlying judgment, but rather to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously."

People v. Coulter, 352 Ill.App.3d 151, 156, 287 Ill.Dec. 255, 260, 815 N.E.2d 899, 904 (2004).²

A Rule 32 petition "`is treated procedurally as a cross between a civil and a criminal action; [it is] a new civil action....'" Carroll v. State, 462 So.2d 789, 790 (Ala.Crim.App.1984). The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State. According to Rule 32.3, Ala.R.Crim.P., "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."

When this Court reviewed Davis's capital-murder conviction and death sentence on direct appeal, we applied a "plain error" standard of review and evaluated the issues raised in Davis's brief, whether or not they had been brought to the attention of the circuit court. See Rule 45A, Ala.R.App.P. However, the "plain error" standard of review does not apply to collateral proceedings attacking a death sentence. See Ex parte Dobyne, 805 So.2d 763 (Ala.2001); Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995); Cade v. State, 629 So.2d 38 (Ala.Crim.App.1993); Thompson v. State, 615 So.2d 129 (Ala. Crim.App.1992). The United States Supreme Court in United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), stated:

"Because it was intended for use on direct appeal, ... the `plain error' standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society's...