Ex parte Pierce

• Decision Date: 01 September 2000
• Citation: 851 So.2d 606
• Parties: Ex parte Andy Dwight PIERCE. (Re: Andy Dwight Pierce v. State).
• Court: Alabama Supreme Court

851 So.2d 606

Ex parte Andy Dwight PIERCE.

(Re: Andy Dwight Pierce v. State).

1981270.

Supreme Court of Alabama.

September 1, 2000.

Ellen L. Wiesner of Cannon & Dunphy, S.C., Brookfield, Wisconsin, for petitioner.

William H. Pryor, Jr., atty. gen.; and George A. Martin, Jr., and Beth Jackson Hughes, asst. attys. gen., for respondent.

Thomas W. Sorrells, Montgomery, for amicus curiae Alabama District Attorneys Association.

On Application For Rehearing

HOOPER, Chief Justice.

The opinion of May 26, 2000, is withdrawn and the following is substituted therefor.

On January 26, 1989, Andy Dwight Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. His conviction was affirmed on appeal, but the Court of Criminal Appeals remanded the case for resentencing because improper information had been admitted during the sentencing phase of the trial. Pierce v. State, 576 So.2d 236 (Ala.Crim.App.1990). Pierce was resentenced to death, on April 15, 1991. On return to the remand, the Court of Criminal Appeals ordered a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory strikes to exclude blacks from the jury venire. Pierce v. State, 586 So.2d 1005 (Ala.Crim.App.1991). On return to the second remand, the Court of Criminal Appeals held that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced Pierce to death. Pierce v. State, 612 So.2d 514 (Ala.Crim. App.1992). This Court affirmed the conviction and the resentencing, Ex parte Pierce, 612 So.2d 516 (Ala.1992), and the United States Supreme Court denied certiorari review, Pierce v. Alabama, 510 U.S. 872, 114 S.Ct. 201, 126 L.Ed.2d 158 (1993). The Court of Criminal Appeals issued a certificate of judgment on February 3, 1993.

On December 2, 1994, Pierce filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. The trial court dismissed several claims, finding that they were procedurally barred by Rule 32.2(a)(2), (3), (4), and (5), Ala. R.Crim. P. After conducting an evidentiary hearing, the trial court entered an order denying Pierce relief on all of his remaining claims. The Court of Criminal Appeals affirmed. Pierce v. State, 851 So.2d 558 (Ala.Crim. App.1999).

This Court granted Pierce's petition for certiorari review, to examine one of Pierce's four claims—that Sheriff Douglas Whittle had been a key witness for the prosecution and that he had improperly had close and continual contact with the jury throughout the trial. The Court of Criminal Appeals held that this issue was procedurally barred by Rule 32.2(a)(3) and (5) because it was not raised at trial or on direct appeal, and it further held the claim to be without merit. We reverse and remand.

I.

The United States Supreme Court in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), held that the defendant's right to a fair trial was violated by the fact that two deputy sheriffs who were key witnesses for the prosecution had charge of the jury during the defendant's three-day trial. The Supreme Court stated: "`In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.'" 379 U.S. at 471-72, 85 S.Ct. 546 (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). In Turner, the jurors were sequestered during a three-day trial. The deputy sheriffs "drove the jurors to a restaurant for each meal, and to their lodgings each night [and] ate with them, conversed with them, and did errands for them." 379 U.S. at 468, 85 S.Ct. 546. The Supreme Court held that this arrangement constituted a close and continual association between the deputy sheriffs and the jurors.

Pierce contends that his due-process rights, including his right to a fair trial, were violated because, he says, Sheriff Whittle, who Pierce claims was a material witness, had substantial association with the jurors during the trial. The Court of Criminal Appeals found that Pierce's claim was without merit because, it said 1) the facts did not support Pierce's claim that Sheriff Whittle had improper close and continual association with the jurors; 2) the record does not show that Sheriff Whittle was a key witness; and 3) Pierce presented no evidence indicating that he was actually prejudiced by any contacts between Sheriff Whittle and the jury. Judge Cobb wrote a concurring opinion in which she agreed with the State's argument that Pierce did not properly raise this issue at trial or on appeal; however, she disagreed with the rest of the main opinion.

The jurors in Pierce's case were sequestered during the trial, which lasted four days for the guilt phase and one day for the sentencing phase. The jurors stayed at the Comfort Inn motel in Enterprise, which is 20 miles from the Geneva County Courthouse. The jurors ate lunch in Geneva at the Chicken Box restaurant and ate breakfast and supper in Enterprise at the Shoney's restaurant. At the Rule 32 evidentiary hearing held by the trial court, more than six years after Pierce's trial, four witnesses testified as to the extent of Sheriff Whittle's contact with the jury. The Court of Criminal Appeals found that the testimony was conflicting and, thus, that the trial court's determination as to the credibility of the evidence must be given great deference. However, we do not find the testimony to be conflicting. We find undisputed evidence indicating the sheriff had close and continual contact with the jury.

Dot Kirkland, the administrative assistant in the sheriff's office, was appointed as a bailiff and was responsible for the jury. Kirkland unequivocally testified that three vehicles were used to transport the jurors during the trial and that she drove her personal van while Sheriff Whittle and Chief Deputy Tice each drove a patrol car. Kirkland further testified that she, the deputy sheriff, and Sheriff Whittle accompanied the jurors to lunch.

Gerald Butler, the foreman of the jury, testified that officials of the Sheriff's Department transported the jurors by cars to their motel; however, Butler did not remember if Sheriff Whittle drove a car. Butler had previously executed an affidavit stating that Sheriff Whittle would "come up to Enterprise in the mornings to make sure everything went smoothly" and that "[t]he State provided everything we needed and the Deputies and Sheriff did a good job." Robert Owens, a juror, testified that he did not remember Sheriff Whittle's driving a car to the motel in Enterprise, but remembered that Sheriff Whittle was sometimes with the jurors at lunch. Keith Brown, the third juror who testified about the jury's contact with Sheriff Whittle, testified that he remembered that Sheriff Whittle went back and forth to Enterprise with the jurors, and Brown thought that Sheriff Whittle drove one of the cars. Brown also said he remembered that Sheriff Whittle went with the jurors to eat lunch.

This testimony does not appear to be conflicting. Each of the witnesses, more than six years after the trial, remembered the sheriff's having contact with the jury. Kirkland, who was in charge of the jury and who would have the most knowledge of the lodging and meal accommodations for the jury, was clear in her testimony that Sheriff Whittle drove one of the cars used to transport the jurors to their motel in Enterprise and that Sheriff Whittle accompanied the jurors to lunch each day. The testimony of the three jurors who testified at the evidentiary hearing supports Kirkland's testimony, even if these three jurors did not ride in a car driven by Sheriff Whittle. The evidence shows that Sheriff Whittle drove jurors in a patrol car 20 miles each way, to and from their motel in Enterprise, each day during the five-day trial. The evidence also indicates that Sheriff Whittle ate lunch with the jurors each day.

The Court of Criminal Appeals states that all of the evidence indicates that Sheriff Whittle did not discuss the facts of the case with the jurors. However, Turner makes it clear that the question whether a witness had close and continual contact with the jury is not dependent upon whether the witness had conversations with the jurors regarding the case:

"It is true that at the time they testified in open court Rispone and Simmons [deputy sheriffs] told the trial judge that they had not talked to the jurors about the case itself. But there is nothing to show what the two deputies discussed in their conversations with the jurors thereafter. And even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution."

379 U.S. at 473, 85 S.Ct. 546.

In State v. Kelley, 192 W.Va. 124, 451 S.E.2d 425 (1994), the Supreme Court of Appeals of West Virginia held that there was "a reasonable probability that the violation in this case contributed to the conviction," even though the sheriff, who was also a witness, acted simply as a bailiff by bringing the jury in and out of the courtroom and transporting messages between the jury and the court. 192 W.Va. at 130,451 S.E.2d at 431. In Radford v. State, 263 Ga. 47, 49, 426 S.E.2d 868, 870 (1993), the Supreme Court of Georgia held that a deputy had had "substantial and continuing contact with and authority over" the jurors, even though he did not discuss the case itself with the jurors. In Radford, the deputy's contact consisted of riding with the jurors on the bus that transported them to and from their motel and to meals, eating meals with them, and standing guard at the motel while the jurors...