Ex parte Wilson

• Decision Date: 17 January 1997
• Citation: 690 So.2d 477
• Parties: Ex parte Betty Woods WILSON. (Re Betty Woods Wilson v. State ). 1941212.
• Court: Alabama Supreme Court

Page 477

690 So.2d 477

Ex parte Betty Woods WILSON.

(Re Betty Woods Wilson v. State [Two Cases] ).

1941212.

Supreme Court of Alabama.

Jan. 17, 1997.

Rehearing Denied March 21, 1997.

Jack Drake of Drake & Pierce, Tuscaloosa; Charles Hooper, Huntsville; Bobby Lee Cook, Summerville, GA; and Charles H. Pullen and Herman Watson, Jr., of Watson, Gammons & Fees, P.C., Huntsville, for petitioner.

Jeff Sessions and William H. Pryor, Jr., Attys. Gen., and Margaret S. Childers, Asst. Atty. Gen., for respondent.

John A. Lentine, Birmingham, amicus curiae Alabama Criminal Defense Lawyers Ass'n, in support of petitioner.

Prior report: Ala.Cr.App., 690 So.2d 449.

PER CURIAM.

CR-92-1223--- AFFIRMED (as to the appeal from conviction); NO OPINION.

CR-93-2132--- WRIT QUASHED AS IMPROVIDENTLY GRANTED (as to the denial of the Rule 32, Ala.R.Crim.P., petition).

HOOPER, C.J., and ALMON, SHORES, ^* HOUSTON, and KENNEDY, JJ., concur.

MADDOX* and BUTTS, ^** JJ., dissent.

INGRAM, J., recuses.

MADDOX, Justice (dissenting).

The majority quashes the writ. Therefore, the judgments of the Court of Criminal Appeals in Betty Woods Wilson's appeal from her judgment of conviction (CR-92-1223) and in her post-conviction Rule 32, Ala. R.Crim.App., petition (CR-93-2132) are affirmed. After reviewing the record and considering the briefs and the oral arguments of the parties, I agree with the majority that the writ is due to be quashed in the case involving Wilson's judgment of conviction; however, I believe that the judgment denying her Rule 32 petition should not be affirmed or reversed, but that the cause should be remanded to the trial court, with directions for further consideration. In this dissent I will list the principles of law that I believe are controlling and why I reach the conclusion that I do regarding her post-conviction claims.

Betty Woods Wilson was convicted of capital murder for hiring James Dennison White to kill her husband, Dr. Jack W. Wilson. The murder was made capital because it was allegedly "done for pecuniary or other valuable consideration or pursuant to a contract for hire." § 13A-5-40(a)(7), Ala.Code 1975. Wilson waived the jury's participation in the sentencing phase of her capital trial and, upon a recommendation of the State, Wilson was sentenced to life in prison without the possibility of parole. Wilson appealed the conviction to the Court of Criminal Appeals, but while that appeal was pending, she filed a petition for post-conviction relief pursuant to Rule 32, collaterally attacking her conviction and sentence, as Rule 32 permits. Barnes v. State, 621 So.2d 329, 332-33 (Ala.Crim.App.1992).

In her petition she requested a new trial because: (1) the prosecution had failed to disclose evidence favorable to her; ¹ and (2) James White, who had pleaded guilty as the actual killer and who was the State's key witness during her trial, had recanted the testimony he gave at her trial. The trial court denied Wilson's Rule 32 petition, and entered a written order. Wilson appealed to the Court of Criminal Appeals. That Court consolidated Wilson's Rule 32 appeal with her direct appeal, and affirmed both judgments. Wilson v. State, 690 So.2d 449 (Ala.Crim.App.1995) (Patterson, J., dissenting). After the Court of Criminal Appeals denied her application for rehearing, ² she petitioned this Court for certiorari review of both the judgment affirming her conviction and the judgment denying her Rule 32 petition, and this Court granted her petition.

In her petition to this Court, Wilson raises the same nine issues she raised in her appeals to the Court of Criminal Appeals; these nine issues consist of six relating to errors she said occurred in her criminal trial and three she says occurred in the trial court's consideration and hearing on her Rule 32 petition.

The facts surrounding this homicide are sufficiently set out in the majority and dissenting opinions of the Court of Criminal Appeals; consequently, I state here only those facts that persuade me that Wilson has shown that she is entitled at least to have the trial court further consider her Rule 32 petition.

Dr. Jack Wilson, the defendant's husband, was found dead at his home in Huntsville on May 22, 1992. He had been stabbed twice in the chest and had been severely beaten around the head and torso. Ms. Wilson and her twin sister, Peggy Lowe, and James White were subsequently indicted for capital murder. The theory of the State's case was that Ms. Wilson and her twin sister, Peggy Lowe, had hired James White to kill Dr. Wilson so that Ms. Wilson would be free of him and would be the beneficiary of his sizable estate. The prosecutor elected to try Wilson and Lowe separately, with Wilson's case proceeding first. The prosecutor elected not to try White until he had testified in the trials of the two sisters.

White testified at Wilson's trial that he had been hired to kill Dr. Wilson for $5,000, and he implicated both Wilson and her sister, Lowe. Wilson was convicted and sentenced to life without parole. Her sister was subsequently tried and acquitted. White pleaded guilty and was sentenced to life imprisonment, with the possibility of parole.

I.

I first address Wilson's claims that the prosecution failed to turn over evidence in her trial, in violation of the principles articulated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), a case decided after both the trial court and the Court of Criminal Appeals had considered Wilson's Rule 32 petition. In addressing this question, I will point out that Wilson made a pre-trial request for discovery of all records generated or maintained by the Alabama Department of Mental Health and Mental Retardation pertaining to James White, the alleged co-defendant, but that some of the requested records were not made available to Wilson before her trial.

On July 17, 1992, Wilson filed a motion styled "Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Trial," and she subsequently, on July 30, 1992, filed a motion styled "Motion for Discovery of Institutional Records and Files Necessary to a Fair Trial." That July 30 motion read, in part, as follows:

"COMES NOW Defendant, by and through her undersigned attorneys, and respectfully moves this Honorable Court, pursuant to Rule 16 of the Alabama Rules of Criminal Procedure; applicable State law; the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Alabama State Constitution, to order the production of the materials specified below. Defendant additionally relies on Ex parte Monk, 557 So.2d 832 (Ala.1989), in which the Alabama Supreme Court held that capital cases are 'sufficiently different to justify broadened discovery.'

"Defendant requests that this Court order the individuals named below to produce for inspection and copying the documents specified herein, wherever such documents may be located, with such production to be arranged within thirty (30) days after discovery is ordered."

In this motion Wilson asked for several documents, but the documents that are the specific subject of Wilson's Rule 32 petition were described in the motion as follows:

"6. All records generated or maintained by the Alabama Department of Mental Health and Mental Retardation and pertaining to the Defendant, codefendant or accomplice;

"7. All records pertaining to Defendant, codefendant or accomplice and generated "....

by the Taylor Hardin Secure Medical Facility, Tuscaloosa, Alabama;

"10. Any and all medical, psychological, psychiatric or mental examinations or evaluations relating to the Defendant, James Dennison White, a/k/a James Dennison Howell, that [have been] or will be performed by any State or governmental agency."

It is undisputed that Wilson, on August 11, 1992, filed a motion styled "MOTION TO EXPEDITE MOTIONS FILED AND REQUEST TO ALLOW DEFENDANT TO HAVE A DICTAPHONE IN HER JAIL CELL," in which she specifically asked, in part:

"that the Court expedite its decisions on the following motions: ... Motion for Discovery of Institutional Records and Files Necessary to a Fair Trial."

She alleged, in part:

"4. For each day the Defendant is denied her constitutional right to participate and prepare her defense, she is losing a day of valuable time to prepare her trial and participate in her own defense."

On February 1, 1993, Wilson filed another motion styled "MOTION TO EXPEDITE MOTIONS FILED," in which she stated, in part:

"COMES NOW the Defendant, Betty Woods Wilson, by and through her attorney of record, and moves this Court to expedite its decisions on the following motions: ... 13. Motion for Discovery of Institutional Records and Files Necessary to A Fair Trial filed July 30, 1992 ..."

Based on the foregoing, it appears to me that Wilson filed sufficient requests to get the institutional records regarding White.

The facts surrounding the legal issue presented in this case are not seriously disputed. In fact, many of the facts were included in a stipulation that is a part of the record. The facts show that after James White was indicted, his defense attorney made a pre-trial motion to have him examined to determine his competency to stand trial on the capital murder charge. Because White was found to be indigent, the trial judge ordered that a psychiatric evaluation be performed on him at the State's expense. In August 1992, Dr. Lawrence Maier, who was under contract with the Department of Mental Health and Mental Retardation, examined White at the Taylor Hardin Secure Medical Facility ("Taylor Hardin"). Of some significance in this case is the fact that Dr. Maier's evaluation report was made of White after White had given seven statements to State agents, in which he had stated to the police many of the facts surrounding the homicide, but had not stated the time of the...