Ex parte Hardy

• Decision Date: 03 November 2000
• Citation: 804 So.2d 298
• Parties: Ex parte John Milton HARDY. (Re John Milton Hardy v. State).
• Court: Alabama Supreme Court

804 So.2d 298

Ex parte John Milton HARDY.

(Re John Milton Hardy v. State).

1981646.

Supreme Court of Alabama.

November 3, 2000.

Rehearing Denied June 1, 2001.

Donald A. Chapman, Decatur; James R. Mason, Jr., Decatur; and John Mays, Decatur, for petitioner.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.

JOHNSTONE, Justice.

John Milton Hardy was indicted, tried, convicted, and sentenced to death for the robbery-murder of Clarence Nugene Terry, a capital crime defined by § 13A-5-40(a)(2), Ala.Code 1975. He appealed to the Court of Criminal Appeals, which affirmed his conviction and death sentence. Hardy v. State, 804 So.2d 247 (Ala.Crim. App.1999). He petitioned us for a writ of certiorari on July 9, 1999, which we granted as a matter of right in compliance with Rule 39, Ala.R.App.P., as it existed before the recent amendments which became effective for death penalty cases on May 19, 2000. We affirm.

The opinion of the Court of Criminal Appeals describes the robbery-murder itself:

"In the early morning hours of September 7, 1993, Clarence Nugene Terry, the clerk at a Bud's Convenience Store located in Decatur, was murdered and robbed. A surveillance camera captured the entire robbery-murder on videotape, and the videotape was recovered at the scene. The videotape showed that [two men] entered the store and that [one of them] was armed with a gun. Immediately upon entering the store, [the gunman] began shooting at Terry. As [the gunman] fired the initial shot, [his unarmed companion] walked past [the gunman] toward the cash registers. The first shot missed Terry, and he ran behind the counter, trying to hide. [The unarmed companion], by this time also behind the counter, tried to open the cash registers as Terry lay on the floor near [the unarmed companion's] feet. As [the unarmed companion] attempted to open the cash registers, [the gunman], who was still in front of the counter, leaned over the counter and shot Terry in the chest. Terry tried to protect and hide himself after this shot. [The gunman] walked around the counter, and while standing over Terry, fired five shots into Terry's face and head. Forensic evidence showed that Terry was still conscious when [the gunman] began shooting him in the head. Terry suffered gunshot wounds to the left cheek, left upper cheek, center of his forehead, left ear, left eye socket, right side of his chest, and the palm of his right hand. Any of the wounds to the head or the one to the chest would have proved fatal. As Terry lay dying on the floor, [the two intruders] continued their attempts to open the cash registers. [The unarmed intruder], at one point, kicked Terry's foot to move it out of his way. The attempts to open the cash registers were unsuccessful, so [the two intruders] unplugged one of the cash registers and took it with them when they ran out of the store."

804 So.2d at 255. The opinion of the Court of Criminal Appeals continues:

"The state's evidence further showed that on August 29, 1993, a few days before the robbery-murder, [Ulysses Charles] Sneed and Christopher Hines drove in Hines's blue 1978 Ford automobile from Louisville, Kentucky, to Tanner, Alabama, to visit Hines's relatives. Sometime after arriving in Tanner, Hines introduced Sneed to Hardy. On the evening of September 6, 1993 (the evening before the early-morning crime), Hardy, Sneed, and Hines rode in someone else's automobile to Tennessee to purchase fireworks and beer. They returned to Alabama, where they spent the remainder of the evening drinking. Around 10:30 p.m., Hines let Hardy borrow his automobile; Sneed left with Hardy. Hines did not see either Hardy or Sneed until around 3:00 or 4:00 a.m. the next morning, when he accompanied them to a location near Hardy's father's house, where, using a sledgehammer, the three men attempted to get money out of a cash register. Subsequently, the cash register was identified as the one taken during the robbery-murder, and Hines's fingerprint was later found on a piece of the cash register that was recovered. Sometime later that day Hardy, Sneed, and Hines returned to Hardy's father's house, where Hardy and his father had an argument about a gun; Hardy's father accused him of stealing the gun.

". . . .

"On Wednesday, September 8, 1993, [the day after the robbery-murder,] Hardy, Sneed, and Hines traveled to Louisville, Kentucky. Hardy was arrested in Kentucky the same day. At the time of his arrest, he was carrying a 9mm semiautomatic handgun. While in custody in Kentucky, Hardy gave an oral statement to the Decatur, Alabama, officers, denying his involvement in the crime; however, he admitted borrowing Hines's automobile on September 6. Also, when asked how much money he `got,' he replied that he did not get any because he could not get the cash register open. He further stated that he had hidden the gun, wrapped in plastic, in the attic at his father's house in Alabama; that the clothes, presumably those worn during the crime, had been burned; and that the cash register had been thrown away. He stated that when he was returned to Alabama, he would consent to a search and would show the officers where the gun was located.

"Hardy appeared before a judge [in Kentucky], waived extradition, and was returned to Alabama. Upon arrival at his father's house, Hardy signed a consent-to-search form. The officers did not find the gun. When asked about it, Hardy stated that he did not know what the officers were talking about and that he had told the officers about a gun just so he could return to Alabama. He further stated that he knew nothing about any burned clothes. There was a smoldering fire in the backyard, but the officers could not determine what had been burned."

804 So.2d at 255-56.

Hardy was tried jointly with Sneed for the capital robbery-murder. Both Hardy and Sneed objected strenuously and persistently to being tried together.

At trial, Hines identified the image of the gunman on the videotape as Hardy. Likewise at trial, Decatur Officer Eric Partridge, Decatur Investigator Thomas Townsend, and the Decatur chief investigator for the case, Dwight Hale, identified the videotape image of the gunman as Hardy.

"Partridge testified that he [had] known Hardy for 15 years; that they had gone to school together; that they rode the same school bus daily for five or six years; that he [had] also `known him through the police department' (R. 3134), and that, while he was a police officer, he saw Hardy two to three times a week; and that the last time he had seen him before the commission of the September 7, 1993, robbery-murder was around August 20, 1993. Townsend testified that he [had] known Hardy all of Hardy's life; that he knows Hardy's family; that they live in the same community; and that, during the year preceding the capital offense, he saw Hardy an average of three times a week. Hines testified that, when he viewed the videotape several days after the offense, he identified the gunman in the videotape as Hardy. He further testified that he had been with Hardy on several occasions during the days preceding the crime and that he was with Hardy during the hours around the crime except between approximately 10:30 p.m., when he gave Hardy the keys to his automobile, and around 3:00 or 4:00 a.m. the following morning, when Hardy returned; and that after Hardy returned, they were going to go get breakfast, but instead Hardy took him to where the cash register was."

804 So.2d at 271-72. "Hale, the chief investigator for this case, testified that he spent a total of about 15 hours around Hardy after Hardy's apprehension, which included interviewing Hardy in Louisville and transporting him to Alabama." 804 So.2d at 271.

Similarly, at trial, Hines and Hale identified the videotape image of the unarmed intruder as Sneed.

"Hines testified that he and Sneed were `best friends'; that he had known him seven or eight years; that when they arrived in Alabama, they went places with Hardy; that he saw Sneed several hours before the crime and again several hours after the crime; and that he recognized Sneed in the videotape when he viewed it several days after the crime."

Sneed v. State, 783 So.2d 841, 855 (Ala. Crim.App.1999).

"In concluding that Sneed was the unarmed person depicted in the videotape, Hale testified that Sneed gave information at booking that he was 6 feet, 1 inch in height and that he weighed 275 pounds; that Sneed appeared to actually be a little heavier than that; that he spent 3 or more hours with Sneed when he interviewed him in Kentucky within a week of the crime; that he spent additional time with Sneed after Sneed was returned to Alabama; and that after viewing the videotape during the interview in Kentucky, Sneed admitted that he was the participant depicted in the videotape carrying the cash register."

Id., at 855. Moreover, at trial, the State introduced a version of a purported statement by Sneed admitting to being the unarmed robber. The statement had been redacted extensively to eliminate all references to Hardy.

"Hardy's defense was that he was not present when the crime was committed and that he had no knowledge of it. He attempted, through alibi witnesses, to show that he was at home when the crime was committed, and he presented witnesses who testified that he was not one of the people committing the crime shown in the surveillance camera videotape. Sneed's defense was that he participated in the robbery part of the crime, but not the murder; that he was one of the people in the videotape but not the gunman; and that he did not intend that anyone be killed."

Hardy, 804 So.2d at 260. Neither Hardy nor Sneed testified at trial. The jury rejected both defenses and returned guilty verdicts and death penalty recommendations against both Hardy and Sneed. The trial court sentenced both to death.

Hardy contended at trial and on appeal, and still insists before us, that Sneed's...