Hunt v. State

• Decision Date: 26 August 2005
• Docket Number: CR-02-0813.
• Citation: 940 So.2d 1041
• Parties: Gregory HUNT v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

940 So.2d 1041

Gregory HUNT v. STATE of Alabama.

CR-02-0813.

Court of Criminal Appeals of Alabama.

August 26, 2005.

Opinion Granting Rehearing November 23, 2005.

Certiorari Denied April 21, 2006.

Alabama Supreme Court 1050302.

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John A. Lentine, Birmingham; and Arnold Levine, New York, New York, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and Jon B. Hayden and Corey L. Maze, asst. attys. gen., for appellee.

WISE, Judge.

The appellant, Gregory Hunt, appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim.P., attacking his capital-murder conviction and his sentence of death.

In 1990, Hunt was convicted of three counts of capital murder for murdering Karen Lane during the course of a burglary and during the course of sexual abuse. The jury, by a vote of 11 to 1, recommended that Hunt be sentenced to death. The circuit court followed the jury's recommendation and sentenced Hunt to death. Hunt's conviction and death sentence were affirmed on direct appeal. See Hunt v. State, 659 So.2d 933 (Ala.Crim. App.1994), aff'd, 659 So.2d 960 (Ala.), cert. denied, 516 U.S. 880, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995). This Court issued the certificate of judgment in May 1995.

In February 1997, Hunt filed a petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P. An amended petition was filed in March 2002. After an evidentiary hearing in June 2002, the circuit court denied the Rule 32 petition. Hunt appealed. The certified transcript was filed with this Court, and this Court set up a briefing schedule. Hunt's counsel filed a brief. Hunt then submitted a pro se brief. This Court, citing Rule 31(a), Ala.R.App. P.,¹ returned the pro se brief because Hunt was represented by counsel on appeal. Hunt then filed a mandamus petition in the Alabama Supreme Court requesting that that court direct this Court to accept and consider his pro se brief. The Supreme Court denied that mandamus petition in June 2003. See Ex parte Hunt, (No. 1021304).

The circuit court's order sentencing Hunt to death states the following concerning the facts surrounding the murder:

"In the early morning hours on August 2, 1988, Ms. [Karen] Lane's bludgeoned body was discovered in Ms. [Tina Gilliland] Cook's apartment.

"According to the testimony of Dr. Joseph Embry of the Alabama Department of Forensic Sciences, Ms. Lane sustained a total of 60 injuries which included: 20 injuries to the head; 12 fractured ribs on the left side and 12 fractured ribs on the right side; her breast bone was fractured; she sustained bruises in her heart; three tears to her liver; bruises to the lungs; a three-quarter-inch tear to the aorta; a bruised pancreas; and, bleeding in the muscles to the side of the neck.

"Next to the body a bar stool was recovered with a quantity of blood on it as well as hair attached to it. Between her legs a broomstick was recovered....

"According to Larry Huys, Alabama Department of Forensic Sciences Serologist, who took vaginal, oral and anal swabs as well as secretions from the armpit and hair samples, sperm was found in Ms. Lane's mouth....

"John Vaughn, Director of Regional Drug Unit, testified that blood was found in the apartment in two rooms upstairs. A bloody palm print was recovered from the fifth step which was successfully matched to the defendant. Fingerprints taken from a window screen on a broken window located at the rear of the apartment included Mr. Hunt's left, ring, right palm and right index finger prints."

(C.R. 1045.)² A neighbor of Ms. Cook's, Mary Turner, testified that around the time of the murder she heard a noise like glass breaking and looked out of her window and saw Hunt entering Ms. Cook's apartment. Although we did not detail the facts surrounding the murder in our opinion on direct appeal we noted: "Our review of the record convinces us that the evidence against the appellant was, in fact, overwhelming." Hunt, 659 So.2d at 941.

Standard of Review

Hunt appeals the denial of his petition for postconviction relief attacking his capital-murder conviction and death sentence. In a postconviction proceeding under Rule 32, Ala.R.Crim.P., the petitioner bears the sole burden of pleading and proof. "The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Rule 32.3, Ala. R.Crim.P.

The standard of review this Court uses in evaluating the rulings made by the trial court is whether the trial court abused its discretion. See Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). However, "[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). "If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition." Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999). The plain-error standard of review does not apply when this Court evaluates the denial of a collateral petition attacking a death sentence. See Ex parte Dobyne, 805 So.2d 763 (Ala.2001), and Rule 45A, Ala.R.App.P. The procedural bars in Rule 32, Ala. R.Crim.P., apply to all cases, even those involving the death penalty. Hooks v. State, 822 So.2d 476 (Ala.Crim.App.2000).

I.

Hunt argues that he was deprived of a full and fair postconviction hearing because, he argues, the circuit court denied him the opportunity to submit evidence by affidavits. Hunt argues that the affidavits, executed by members of Hunt's family, would establish mitigating evidence concerning Hunt's troubled childhood. He further argues that the circuit court erred in excluding the testimony of cocounsel regarding statements made to cocounsel by members of Hunt's family.

The following occurred at the evidentiary hearing on the Rule 32 petition:

"[Defense counsel]: Judge, the live witnesses we anticipated that we served notice of with the hope that they would be here to testify, they're not here to testify. And in lieu of them, I would hope that Your Honor would allow me to put Ms. [Mary Lynne] Wurelwas [an attorney assisting defense counsel] on who has spoken to two of those witnesses and that will be regarding the penalty-phase ineffective assistance.

"[Assistant attorney general]: Your Honor, if he's talking about making some—or letting his associate testify as to what someone else has testified, the State is going to vigorously object to that.

"The Court: Well, I understand that.

"[Assistant attorney general]: That is nothing but rank hearsay.

"The Court: Where are these people? Do you know?

"[Defense counsel]: I don't know where they are right now, no.

"The Court: Who are they?

"[Defense counsel]: They're family members of Greg Hunt.

"The Court: Oh, okay.

"[Defense counsel]: Specifically, Kim Abreu, who is one of Greg's sisters and Jeff Hunt, one of Greg's brothers. With respect to the hearsay objection, Judge, at the sentencing proceeding hearsay would have been admissible."

(R. 75-76.)³

Hunt first argues that excluding the affidavits violated the clear wording of Rule 32, Ala.R.Crim.P. Rule 32.9(a), Ala.R.Crim. P., states, in pertinent part:

"Unless the court dismisses the petition, the petitioner shall be entitled to an evidentiary hearing to determine disputed issues of material fact, with the right to subpoena material witnesses on his behalf. The court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing, in which event the presence of the petitioner is not required, or the court may take some evidence by such means and other evidence in an evidentiary hearing."

(Emphasis added.)

Rule 32.9(a), Ala.R.Crim.P., is discretionary, not mandatory and leaves the question of the admission of evidence by affidavits to the discretion of the trial court. This Court has upheld a circuit court's exclusion of affidavits when those affidavits were introduced for the first time at the Rule 32 evidentiary hearing. In Hamm v. State, 913 So.2d 460 (Ala. Crim.App.2002), we stated the rationale for this holding:

"Rule 32.9(a), Ala.R.Crim.P., provides that a court has the discretion to take evidence by affidavit. As Hamm argues on appeal, postconviction counsel was aware of Dr. [Dale] Watson and the substance of his testimony, but did not call him to testify at the hearing. If the court had admitted the affidavit, the State would not have been able to examine Dr. Watson about his education and expertise, his testing methods, the validity of his conclusions, or any other areas appropriate for cross-examination. As this Court stated in Callahan v. State, when addressing similar circumstances:

"`"The admission of the affidavit would have denied the State its right to cross-examine the witness. Additionally, the State did not know of the existence of the affidavit until the evidentiary hearing, so the State was also deprived of the opportunity to prepare a counter affidavit."

"`... We cannot say the trial abused its discretion when it refused to consider the affidavit in the absence of absence of evidence that the affiant was actually unavailable, especially considering that the testimony was offered in such a fashion.... Presenting the testimony by affidavit prevented the State from confronting the affiant, and did not allow the trial court the opportunity to closely examine the complete testimony.... Rule 32.9(a), Ala.R.Crim.P.'

"Callahan, 767 So.2d 380, 403 (Ala.Crim. App.1999), cert. denied, 767 So.2d 405 (Ala.2000). See also McNair v. State, 706 So.2d 828, 838 (Ala.Crim.App.), cert. denied, 706 So.2d 828 (Ala.1997), cert. denied, 523 U.S. 1064 (1998)."

913 So.2d at 478-79 (...