EX PARTE STATE

• Decision Date: 06 October 2000
• Citation: 822 So.2d 476
• Parties: Ex parte State of Alabama. (In re Joseph B. HOOKS v. STATE of Alabama).
• Court: Alabama Court of Criminal Appeals

822 So.2d 476

Ex parte State of Alabama.

(In re Joseph B. HOOKS v. STATE of Alabama).

CR-99-2212.

Court of Criminal Appeals of Alabama.

October 6, 2000.

Bill Pryor, atty. gen., and Michelle Riley Stephens, asst. atty. gen., for petitioner.

Francis C. Lynch, Jr., Boston, Massachusetts, for respondent.

LONG, Presiding Judge.

The State filed this petition for a writ of mandamus directing Judge William Shashy, of the Fifteenth Judicial Circuit, to rescind discovery orders issued to Holman Prison, the Alabama Department of Forensic Sciences, and the Tallapoosa County District Attorney's Office.¹ Hooks was convicted of capital murder and was sentenced to death by electrocution. We affirmed his conviction and sentence. Hooks v. State, 534 So.2d 329 (Ala.Crim. App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). In 1989, Hooks filed a petition for postconviction relief pursuant to Rule 20, Ala.R.Crim.P.Temp. (now Rule 32, Ala.R.Crim.P.) Sometime after the petition was filed Hooks filed a request for production, seeking discovery of all materials maintained by Holman Prison and the Alabama Department of Forensic Sciences regarding executions in Alabama since 1976 and also seeking discovery of records of the Tallapoosa County District Attorney relating to Hooks's criminal and drug-related offenses.² In June 2000, Judge Shashy granted Hooks's request. The State filed a motion to reconsider. That motion was denied; this petition followed.

All three appellate courts of this State have used mandamus as a method of reviewing a trial court's ruling on a discovery motion. Ex parte Compass Bank, 686 So.2d 1135 (Ala.1996); Ex parte Heilig-Meyers Furniture Co., 684 So.2d 1292 (Ala.1996); Ex parte Mobile Fixture & Equip. Co., Inc., 630 So.2d 358 (Ala.1993); Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala.1991); Ex parte Monk, 557 So.2d 832 (Ala.1989); Ex parte Lang, 738 So.2d 1288 (Ala.Civ.App.1999); and State v. Matthews, 738 So.2d 944 (Ala. Crim.App.), aff'd, 724 So.2d 1143 (Ala. 1998). As the Alabama Supreme Court stated in Ex parte Compass Bank:

"Mandamus is the `proper means of review to determine whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders so as to prevent an abuse of the discovery process by either party.' Ex parte Mobile Fixture & Equipment Co., 630 So.2d 358, 360 (Ala.1993). Mandamus is an extraordinary remedy requiring a showing that there is: `(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Edgar, 543 So.2d 682, 684 (Ala. 1989); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So.2d 772, 773 (Ala.1994).

"Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court abused its discretion. Ex parte Clarke, 582 So.2d 1064, 1067 (Ala.1991); Ex parte McTier, 414 So.2d 460 (Ala.1982)."

686 So.2d at 1137.

The present mandamus petition concerns three discovery orders issued by Judge Shashy. The first order, directed to Holman Prison, ordered the prison to produce, among other things,³ all

"[r]ecords, files, documents, and other materials in Holman Prison's possession, custody, or control regarding executions in the State of Alabama since 1976, including but not limited to:

"(a) documents sufficient to show the identity of those executed;

"(b) all photographs of these executions;

"(c) documents sufficient to show the identity of all witnesses to each execution;

"(d) documents sufficient to show the location of each execution;

"(e) the death certificate of each individual executed;

"(f) pathologist reports on the cause of death of those executed;

"(g) documents sufficient to show the origin, age, condition, manufacturer and maintenance of the equipment used for these executions;

"(h) all records of the procedures followed in maintaining the equipment used for executions and all records of the procedures followed to prepare the equipment for each execution;

"(i) documents sufficient to show the identity, training, position and background of all persons involved in operating the execution equipment;

"(j) reports completed following each execution; and

"(k) all documentation and reports of all complications occurring while carrying out any execution, including the executions of Horace Franklin Dunkins and John Louis Evans."

The second discovery order, directed to the Alabama Department of Forensic Sciences, ordered the production of the same information that Holman Prison had been ordered to produce.⁴ The third discovery order, addressed to the Tallapoosa County District Attorney, ordered the district attorney to disclose the following items:

"Criminal offenses (both adult and juvenile), incarceration, detention, disciplinary, medical, psychological, psychiatric, and mental health records, files, documents, and other materials concerning Mr. Hooks that are in the Tallapoosa County DA's possession, custody, or control.

"Records, files, documents, and other materials concerning Mr. Hooks's drug use that are in the Tallapoosa County DA's possession, custody, or control."

I.

The State argues that the request for the production of the information concerning prior executions in Alabama is procedurally barred because it presents an issue that could have been raised at trial or on direct appeal, but was not; therefore, the State argues, the information should not be the subject of a discovery order. See Ex parte Land, 775 So.2d 847 (Ala.2000). Hooks argues in response that Alabama's method of execution—the electric chair—constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

This Court has repeatedly held that this claim is procedurally barred in a postconviction proceeding as one that could have been raised at trial or on direct appeal but was not. Tarver v. State, 761 So.2d 266 (Ala.Crim.App.2000); Pierce v. State, [Ms. CR-96-1668, March 2, 1999] ___ So.2d ___ (Ala.Crim.App.1999), remanded on other grounds, [Ms. 1981270, September 1, 2000] ___ So.2d ___ (Ala.2000); Weeks v. State, 568 So.2d 864 (Ala.Crim.App.1989), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990); Harrell v. State, 526 So.2d 646 (Ala.Crim.App.), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 347 (1988). We have also held that this claim was barred based on other preclusion grounds in Rule 32, Ala. R.Crim.P. See Wright v. State, 766 So.2d 213 (Ala.Crim.App.2000) (claim barred by the two-year limitations period in Rule 32.2(c)); Harrell v. State, 526 So.2d 646 (Ala.Crim.App.1988) (claim barred because it was raised and rejected on direct appeal).

Other state and federal courts have likewise held that this claim was procedurally barred in the postconviction context. See Smith v. Anderson, 104 F.Supp.2d 773 (S.D.Ohio 2000); Sawyer v. Whitley, 772 F.Supp. 297 (E.D.La.), aff'd, 945 F.2d 812 (5th Cir.1991), aff'd, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Jones v. Whitley, 938 F.2d 536 (5th Cir.1991); Dawson v. State, 673 A.2d 1186 (Del.), cert. denied, 519 U.S. 844, 117 S.Ct. 127, 136 L.Ed.2d 76 (1996).

Moreover, in Pierce we stated:

"The appellant's last argument is that his claim that death by electrocution constitutes excessive, cruel, and unusual punishment is meritorious and should not have been dismissed. We disagree. The circuit court correctly found this claim to be procedurally barred because the appellant could have raised it at trial and on appeal but did not. Rule 32.2(a)(3) and (5), Ala.R.Crim.P.

"Even if this issue were properly before this court, we would decide it adversely to the appellant. We have repeatedly held that the death penalty is not per se cruel and unusual punishment and that electrocution as a means of capital punishment does not constitute cruel and unusual punishment. Williams v. State, 627 So.2d 985 (Ala.Cr. App.1991), aff'd, 627 So.2d 999 (Ala. 1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Boykin v. State, 281 Ala. 659, 207 So.2d 412 (1968), reversed on other grounds, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)."

The State, citing Ex parte Land, asserts that Hooks has failed to establish good cause for the disclosure of this information because, it says, this claim is procedurally barred.

Whether and to what extent discovery is allowed on a postconviction petition was recently addressed by the Alabama Supreme Court in Land. The Land Court stated:

"We agree with the Court of Criminal Appeals that `good cause' is the appropriate standard by which to judge postconviction discovery motions. In fact, other courts have adopted a similar `good-cause' or `good-reason' standard for the postconviction discovery process. See [State v.] Marshall, [148 N.J. 89, 690 A.2d 1, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997)]; State v. Lewis, 656 So.2d 1248 (Fla. 1994); People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175, 121 Ill.Dec. 937, 526 N.Ed.2d 131 (1988). As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconviction discovery process. See Fitzgerald, supra, 123 Ill.2d at 183, 121 Ill.Dec. 937, 526 N.E.2d at 135. We also agree that New Jersey's Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases. In addition, we are

...