Hays v. State

• Decision Date: 28 February 1992
• Parties: Henry F. HAYS v. STATE. CR 90-1141.
• Court: Alabama Court of Criminal Appeals

Page 1230

599 So.2d 1230

Henry F. HAYS v. STATE.

CR 90-1141.

Court of Criminal Appeals of Alabama.

Feb. 28, 1992.

Rehearing Denied April 17, 1992.

Certiorari Denied June 19, 1992

Alabama Supreme Court 1911190.

Richard M. Kerger, Toledo, Ohio, and Dominick J. Graziano, Tampa, Fla., and Neil Hanley, Mobile, for appellant.

James H. Evans, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the denial of a petition for post-conviction relief challenging the appellant's conviction for capital murder.

In December 1983, Ku Klux Klansman Henry F. Hays, the appellant, was convicted of the capital murder of Michael Donald. He was sentenced to death in February 1984. The Alabama Court of Criminal Appeals affirmed that conviction on direct appeal but reversed his sentence of death, holding that the jury's sentencing verdict of life imprisonment without parole was binding on the trial court. Hays v. State, 518 So.2d 749 (Ala.Cr.App.1985). The Alabama Supreme Court affirmed this Court's affirmance of the appellant's conviction but ordered that the sentence of death be reinstated. Ex parte Hays, 518 So.2d 768 (Ala.1986). The United States Supreme Court declined to hear the appellant's case. Hays v. Alabama, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988).

In May 1988, the appellant filed a petition for post-conviction relief in the Circuit Court of Mobile County, Alabama. After a number of hearings at which both argument and evidence were presented and at which the appellant was represented by counsel, the circuit court, in March 1991, denied the petition and entered written findings of fact. This appeal is from that denial.

I.

The appellant argues that the prosecution's key witness, James L. "Tiger" Knowles, committed perjury in the appellant's trial. He contends that the circuit court failed to apply the principles of Ex parte Frazier, 562 So.2d 560 (Ala.1989). We disagree.

In Frazier, the Alabama Supreme Court announced a new standard for reviewing motions for new trial alleging perjured testimony.

"[T]he following standard should be used in death penalty cases: In order to grant a motion for a new trial alleging perjured testimony, the trial court must be reasonably well satisfied 1) that testimony given by a witness at trial was false; 2) that there is a significant chance that had the jury heard the truth, it would have reached a different result; and 3) that the movant is not relying on evidence of which he was aware at trial and which he consciously decided not to use to challenge the testimony of the perjured witness.

"... [A] presumption of correctness will continue to be indulged in favor of the trial court's factual findings, and the trial court's ruling on the motion will be upheld on appeal unless it is clearly erroneous."

Ex parte Frazier, 562 So.2d at 570. Under this test, the accused no longer has to prove that the State had knowledge of the perjured testimony.

Since a petition for post-conviction relief may serve the same purpose as a motion for new trial on the ground of newly discovered evidence, Groce v. State, 48 Ala.App. 709, 710-11, 267 So.2d 499, 501 (1972) (the writ of error coram nobis "serves as a motion for a new trial on the ground of newly discovered evidence"), this same standard should be applied to a petition for post-conviction relief alleging that a conviction was based on perjured testimony. See Ex parte Lockett, 548 So.2d 1045, 1047 (Ala.1989) ("cases dealing with the writ of error coram nobis may be used in interpreting Rule 20," A.R.Crim.P.Temp.).

At one of the hearings on the post-conviction petition, Knowles, the appellant's accomplice and the prosecution's chief witness against the appellant at his trial, admitted that he had perjured himself in his various and numerous accounts of the murder of Michael Donald which he had given both before and after the trial of the appellant. At an evidentiary hearing held on June 22, 1989, Knowles testified that he had told a number of different stories about the killing of Michael Donald and the surrounding events; that he had committed perjury with respect to that event; that he had lied to grand juries, to federal and state law enforcement officers; and that he had lied in the "original Hays case." RR. 187-188 ¹. He testified that he "lied to make the crime not look as bad as it was," RR. 190, and that "[a]t times," he had testified so as to make others look more guilty and himself less guilty. RR. 191.

However, at that same hearing, Knowles maintained that he had not lied about the appellant's participation in the murder.

"Q. [By the Mobile County District Attorney:] All right. And though you have lied, have you ever waivered to the very best of your knowledge on the fundamental proposition that Henry Hays participated in the murder of Michael Donald with you?

"A. [Knowles:] No." RR. 216.

"Q. Did the lies that you told at the Henry Hays trial relate to the involvement of Henry Hays in the murder of Michael Donald?

"A. No.

"Q. And just so the record [will] be explicit, you've testified as to how he participated?

"A. Yes.

"Q. And, again, on Friday night, March 20th, 1981, did you and Henry Hays have any intent other than to, quote, kill a nigger?

"A. No.

"Q. And did Henry Hays participate in the manner that you've testified in the death of Michael Donald, the murder of Michael Donald?

"A. Yes." RR. 222.

Also at that evidentiary hearing, Knowles testified that Michael Donald and the appellant were fighting and that "Henry was cutting at Michael with a razor knife, a utility knife rather. After Donald was killed and we put him in the trunk and Henry cut his throat." RR. 217-18. Knowles stated that he and the appellant in "combination" put a noose around Donald's neck while he was still alive and that both of them "pulled and tightened" that noose around the neck of Donald. RR. 218.

The appellant argues that Knowles' inconsistent statements and admitted perjury demonstrate his "inherent lack of credibility" (Appellant's brief at 17) and that Knowles is a "pathological liar" (Appellant's brief at 10). The appellant specifically alleges that Knowles lied about the reason a cross was burned on the grounds of the Mobile Courthouse on the night of the murder, and about whether Matthew Jones knew that Knowles had "borrowed" Jones' pistol. Other than these references, the appellant has failed to state exactly what facts Knowles lied about at his trial.

We have examined the transcript of the appellant's trial. Defense counsel cross-examined Knowles about various statements he had given to federal and state law enforcement officers. Throughout this cross-examination, Knowles admitted that he had initially denied any knowledge of or participation in the murder, that he did not tell the truth, that he was "inconsistent in a lot of matters," that he had on occasion answered only some questions truthfully, and that he had failed to disclose some information until recently before trial. On cross-examination, defense counsel expertly portrayed Knowles as a young but ruthless and amoral opportunist who told the truth only when it appeared to be in his best interests to do so.

We note that the trial court charged the jury that "if you believe that a witness has deliberately sworn falsely as to a material fact you may, if you wish, disregard that witness' entire testimony." O.R. 794-95. ²

The appellant's argument would be convincing had Knowles been the only witness to incriminate the appellant. However, our review of the record of the appellant's trial convinces this court beyond any doubt that the testimony of accomplice Knowles was corroborated by substantial independent evidence connecting the appellant to the murder and kidnapping, including the testimony of three other witnesses that the appellant had admitted his participation. ³ Furthermore, the most significant evidence about the cross-burning and how the pistol was obtained came not from Knowles, but from other witnesses.

Applying the rule of Frazier, this Court finds that the appellant has failed to show that the testimony given by Knowles at the appellant's trial concerning the appellant's participation in the murder was false and perjured. On a petition for post-conviction relief, "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle him to relief." Rule 20.3, A.R.Crim.P.Temp. (now Rule 32.3, A.R.Crim.P.). Furthermore, applying not only the literal rule of Frazier, but also the spirit and intent of that case, this court is absolutely convinced that there is no significant chance that, had the jury heard the impeaching evidence, it would have reached a different result. This court is convinced that Knowles' testimony, if given today, would be as damning as it was when given in 1983. "A judgment of acquittal 'is not required because the government's case includes testimony by "an array of scoundrels, liars and brigands." ' United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir.1981), quoting United States v. Tiche, 424 F.Supp. 996, 1000-01 (W.D.Pa.), aff'd mem., 564 F.2d 90 (3d Cir.1977)." United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985), cert. denied, 475 U.S. 1051, 106 S.Ct. 1275, 89 L.Ed.2d 582 (1986).

In his finding of facts, the trial judge found:

"This Court is satisfied beyond all reasonable doubt that petitioner had a fair trial and that the jury reached the only logical and reasonable conclusion: that the petitioner is guilty of the capital offense to the exclusion of any reasonable probability of his innocence. The petitioner was represented by one of Mobile's preeminent defense attorneys with years of experience, and who handled the case so well that twelve jurors were persuaded that in spite of this heinous and despicable crime the petitioner should not be put to death.

"This Court is also convinced beyond all...