Harris v. State

• Decision Date: 29 October 2004
• Docket Number: CR-01-1748.
• Citation: 947 So.2d 1079
• Parties: Louise HARRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

947 So.2d 1079

Louise HARRIS v. STATE.

CR-01-1748.

Court of Criminal Appeals of Alabama.

October 29, 2004.

Opinion Overruling Rehearing May 27, 2005.

Certiorari Denied (as to State) October 21, 2005 Alabama Supreme Court 1041437.

William R. Blanchard, Montgomery; and Stuart W. Gold, New York, New York, for appellant.

William H. Pryor, Jr., atty. gen., and Tracy Daniel and Jeremy W. McIntire, asst. attys. gen., for appellee.

William H. Pryor, Jr., and Troy King, attys. gen., and Tracy Daniel and Jeremy W. McIntire, asst. atty. gen., for appellee, on rehearing.

PER CURIAM.

On July 13, 1989, Louise Harris was convicted in the Montgomery Circuit Court of murder made capital because it was committed for a pecuniary or other valuable consideration or pursuant to a contract or for hire, an offense made capital by § 13A-5-40(a)(7), Ala.Code 1975.

The facts underlying Harris's conviction are as follows.

"The appellant was indicted for two counts of capital murder in the murder of Isaiah Harris: murder for pecuniary gain or pursuant to a contract for hire and murder of a deputy sheriff while the deputy was on duty. Following the introduction of the State's evidence, the appellant moved that the second count of the indictment be dropped, because she argues, the State failed to prove that Harris was on duty at the time of the offense. The trial court granted this motion, and the case went to the jury only on the first count of the indictment. The jury found the appellant guilty as charged in the first count of the indictment and recommended that she be sentenced to life imprisonment without the possibility of parole, seven jurors voting for life without parole and five voting for death by electrocution. Thereafter, a sentencing hearing was held before the trial court, after which the court ordered that the appellant be sentenced to death by electrocution.

"The record indicates that the appellant was involved in an affair with Lorenzo McCarter, a codefendant, while she was married to Harris. The appellant and Harris had experienced marital problems in the past, which the victim apparently believed he had solved when he promised to buy the appellant a house. The record indicates that the appellant asked McCarter to hire someone to kill her husband. McCarter approached a co-employee about doing `the job'; however, the co-employee refused and told his supervisor about the solicitation. McCarter then approached Michael Sockwell and Alex Hood, other codefendants, to commit the offense. McCarter knew that Sockwell owned a gun. Prior to the offense, the appellant met with the three men and was shown the gun. Sockwell and Hood were paid $ 100 in advance to commit the offense, with the promise that more money would be paid upon completion of the murder. The State presented evidence of the existence of various insurance policies on the victim's life, with the appellant specified as the beneficiary.

"The victim, who worked the night shift as a jailer, left his home at approximately 11:00 p.m. to go to work, after being awakened by the appellant a little later than usual. Immediately after Harris left home, the appellant paged McCarter on his beeper, giving the message that her husband was leaving. There was evidence that the appellant had paged McCarter on his beeper many times in the past to arrange liaisons. When he received the message in the instant case, McCarter was seated in Hood's car, located across the street from the entrance to the subdivision in which Harris and appellant lived. Also present in the car were Alex Hood and Freddie Patterson. Patterson was unaware of the conspiracy. Sockwell was hidden behind the hedge located at the entrance to the subdivision. Harris was driving to work in his own 1979 black Ford Thunderbird automobile. When Harris stopped at the stop sign at the entrance of the subdivision, Sockwell shot him once in the face at close range with a shotgun. As a result, the lower half of the victim's face was blown off, leaving his teeth, tongue, and `matter' from his face blown across the car. After the shot, the victim's vehicle traveled slowly across the highway and came to a stop in a ditch.

"When the victim failed to arrive at work by 11:25 p.m., a co-employee telephoned his home twice and spoke with the appellant. There was testimony that the appellant offered no assistance and that her speech was slow or sluggish. Two men, returning from work, discovered the victim's body shortly after midnight and telephoned the Montgomery Police Department. After the police arrived at the scene and identified the victim, several officers of the police department and employees of the Montgomery County Sheriff's Department went to the house of the victim and the appellant to notify the appellant of the victim's death. There was testimony that, upon being notified of the victim's death, the appellant began screaming and sobbing, but she shed no tears. Moreover, she became completely calm instantly in order to answer questions. A member of the Montgomery County Sheriff's Department, who knew both the appellant and the victim, testified that she asked the appellant why she did not appear to be upset, and that the appellant responded that she and the victim had been experiencing marital problems for some time. She also told the witness that she had engaged in several extramarital affairs, the current one being with Lorenzo McCarter. The appellant stated that she was in love with McCarter. In response to questions asked by an investigator with the sheriff's department, she responded that McCarter's car was broken down in the vicinity, and when asked if McCarter could have killed the victim, the appellant responded, `If he did kill him I didn't tell him to.' At trial, McCarter elected to testify against the appellant, in exchange for the prosecutor's promise not to seek the death penalty in his case."

Harris v. State, 632 So.2d 503, 508-09 (Ala.Crim.App.1992).

The jury recommended by a vote of 7-5 that Harris be sentenced to life in prison without the possibility of parole. The trial court rejected the jury's recommendation and sentenced Harris to death. This Court affirmed Harris's conviction and sentence of death. Harris v. State, 632 So.2d 503 (Ala.Crim.App.1992). The Alabama Supreme Court affirmed this Court's judgment, Ex parte Harris, 632 So.2d 543 (Ala.1993). The United States Supreme Court granted certiorari review in part, Harris v. Alabama, 512 U.S. 1234, 114 S.Ct. 2736, 129 L.Ed.2d 858 (1994),¹ and affirmed the Supreme Court's judgment, Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).

This Court's certificate of judgment was issued on November 18, 1993. On June 22, 1995, Harris, through counsel, filed the instant Rule 32, Ala. R.Crim. P., petition.² On August 27, 1998, the circuit court issued an order summarily dismissing several of Harris's claims as being procedurally barred, but granted Harris leave to amend the petition as to several claims that the court found to be insufficiently pleaded. On November 23, 1998, Harris filed an amended petition. Ultimately, the circuit court dismissed all of Harris's claims except for her claim that the prosecution had used its peremptory challenges to exclude African-Americans from jury service because of their race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and her claims that she had received ineffective assistance of counsel at trial and on appeal. On July 26 and 27, 1999, a hearing was conducted on those claims. Additional testimony, in the form of a deposition, was taken on July 28, 1999, and was provided to the circuit court. On October 3, 2001, closing arguments were heard and on April 16, 2002, the circuit court issued an order denying the amended petition. Harris appeals.

Before addressing Harris's claims on appeal, we note the following principles that apply to this Court's review of a circuit court's denial of a Rule 32 petition. Because Harris was convicted of capital murder, her direct appeal not only included review of the issues presented by Harris, but also the record was searched for "plain error." Ex parte Harris, 632 So.2d at 544; Harris v. State, 632 So.2d at 542. Thus, "even though this petition challenges a capital conviction and a death sentence, there is no plain-error review on an appeal from the denial of a Rule 32 petition." Dobyne v. State, 805 So.2d 733, 740 (Ala. Crim.App.2000), aff'd, 805 So.2d 763 (Ala. 2001), citing Pierce v. State, 851 So.2d 558, 563 (Ala.Crim.App.1999), rev'd on other grounds, 851 So.2d 618 (Ala.2002). "`In addition, "the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed." State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App.1993).'" Williams v. State, 783 So.2d 108, 112 (Ala.Crim.App.2000)(quoting Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App. 1995)).

Claims presented in a petition but not pursued on appeal are deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995)(holding that "[w]e will not review issues not listed and argued in brief"). New claims presented for the first time on appeal are not properly before the appellate court. See Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997)(holding that "[a]n appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition"). Claims listed in an appellate brief that do not include supporting argument, as required by Rule 28(a)(10), Ala. R.App. P., are not properly before this Court.

"[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). However, where there are disputed facts in a post-conviction proceeding resolved by the circuit court "[t]he standard of review...