Jones v. State

• Citation: 753 So.2d 1174
• Parties: Aaron Lee JONES v. STATE.
• Decision Date: 30 April 1999
• Court: Alabama Court of Criminal Appeals

753 So.2d 1174

Aaron Lee JONES v. STATE.

CR-95-1967.

Court of Criminal Appeals of Alabama.

April 30, 1999.

Rehearing Denied July 16, 1999.

Certiorari Denied December 17, 1999.

Dewey Ballantine, Vincent R. Fitzpatrick, Jr., and Heather K. McDevitt, New York City, New York; and Stephen Clark Jackson, Birmingham, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

Alabama Supreme Court 1981775.

FRY, Judge.

This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to me on February 15, 1999. Although I was not a member of this Court when this case was orally argued, I have reviewed the recorded audiotapes and videotapes of the argument.

Aaron Lee Jones appeals from the denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P, challenging his 1982 conviction for capital murder. Jones was originally convicted of murder made capital because two or more human beings were intentionally killed by one or a series of acts. He was sentenced to death in 1979. See § 13-11-2(a)(10) (now repealed). This court, however, reversed the trial court's judgment and ordered a new trial pursuant to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). See Jones v. State, 403 So.2d 1 (Ala.Cr.App.1981). Jones was retried, and on December 10, 1982, he was again convicted of capital murder and sentenced to death. After remanding Jones's case for the trial court to clarify whether it had found any mitigating circumstances and whether the aggravating circumstances outweighed the mitigating circumstances, this Court, on January 22, 1985, affirmed Jones's conviction and sentence of death. Jones v. State, 520 So.2d 543 (Ala. Cr.App.1984). The Alabama Supreme Court affirmed this court's judgment on January 8, 1988. Ex parte Jones, 520 So.2d 553 (Ala.1988). On October 3, 1988, the United States Supreme Court denied certiorari review. Jones v. Alabama, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988). On March 6, 1990, Jones filed a Rule 32 petition attacking his conviction and sentence. On May 13, 1995, Jones supplemented his original petition with an amended petition. The trial court held an evidentiary hearing on the allegations in Jones's petition on November 13-14, 1995, and, in a thorough 30-page order, denied all relief on June 10, 1996.

The essential facts of this case were recited by this court in Jones v. State, supra:

"Tony Nelson testified that on the morning of November 10, 1978, he was sleeping with his ten-year-old brother, Charlie, in one of the bedrooms of his parents' home in the Rosa community in rural Blount County, Alabama. His thirteen-year-old sister, Brenda, was sleeping with their parents, Willene and Carl Nelson, in another bedroom. Tony's grandmother was sleeping by herself in a third bedroom of the home.

"At 3:27 a.m. Tony was awakened by a disturbance inside the home. When the light in his bedroom was turned on, he saw Arthur Lee Giles, a former employee of his father, standing in the doorway of Tony's bedroom. Tony's father appeared and asked Giles to leave. Tony got out of bed and followed Giles to make sure Giles left as directed. As Tony stepped out the back door of the home Giles shouted `here,' and shot him twice, once in the neck and once in the chest. Giles, then, re-entered the Nelsons' home. Tony made an effort to go and get a gun, but was unable to do so due to his injuries. Instead, he crawled to, and hid under, his father's truck. Shortly, thereafter, he heard Giles and another man exit his parents' home. He saw the men only from the waist down. He heard one of them say that they needed to find Tony and that the other man should `get the money.' After they left, Tony went back inside. In his parents' bedroom he found his mother, his father, his sister, and his brother. All four had been severely wounded and there was blood all over them. Charlie and Brenda responded when Tony asked if anyone was still alive. His parents were dead. Tony rushed Brenda and Charlie to the hospital where all three, including Tony, were treated for their wounds.

"Charlie Nelson testified that he saw Giles when his father, Carl Nelson, asked Giles to leave the home. He saw Tony leave and heard two gunshots. Giles, then, reappeared and shot Charlie's grandmother, who was standing in the doorway to Charlie's bedroom. Giles proceeded to Charlie's parents' bedroom from where Charlie heard more gunshots. Charlie ran to his parents' bedroom, where he saw Giles and another man, whom he positively identified at trial as the appellant. He realized that his mother, his father and his sister had all been shot. He jumped on top of his sister to protect her from further harm. As he lay there, he saw the appellant stab his mother and father with a knife. His mother and father were both moaning as the appellant repeatedly stabbed them. The appellant turned and stabbed Charlie's sister Brenda, who had already been shot above one eye. Charlie was hit in the head several times, after which the appellant stabbed him twice in the back.

"On cross-examination Charlie admitted that during appellant's first trial Charlie had stated that Giles and the appellant appeared to be drunk. He also stated that Giles `ordered the appellant around' and directed the appellant to stab his victims.

"Brenda Nelson confirmed those parts of Tony's and Charlie's testimony as to things she had witnessed. She identified the appellant at trial as the man she saw repeatedly stabbing her mother. She stated that Giles was the one that shot her, Brenda, in the head.

"Dr. Joseph Embry of the Alabama Department of Forensic Science testified that Willene Nelson died from multiple stab wounds that damaged her heart, lungs, and kidneys. Her body received 29 knife wounds (17 stab wounds and 12 slash wounds), numerous lacerations and abrasions about the head from a blunt instrument, and one gunshot wound to the left shoulder. Dr. Embry testified that Carl Nelson died from a combination of gunshot wounds and stab wounds. He was shot once through the heart and once in the left arm. He was stabbed, approximately, eight times, including a stab wound in the neck which severed his spinal cord. He also received numerous blunt instrument abrasions about the head. Dr. Embry testified that Carl Nelson was alive when he was stabbed in the neck.

"Billy Irvin, an investigator with the Blount County Sheriffs Department, testified that he interviewed the appellant at 8:15 a.m. on November 11, 1978. During this interrogation the appellant confessed to his participation in the events at the Nelsons' home the previous night. Appellant's confession was tape recorded and transcribed. The appellant reviewed the transcript of his confession and signed it, voluntarily. After the trial court conducted a hearing and determined that appellant's confession was, indeed, voluntary, Irvin was permitted to read it to the jury.

"In appellant's statement, he admitted participating in the activities that resulted in the deaths of Willene and Carl Nelson. According to the appellant, although they never found any money, he and Giles went to the Nelsons' home to rob Carl Nelson. Giles had told the appellant that Carl Nelson had not sufficiently paid Giles for work Giles had done for Nelson in the past. Giles and the appellant had been drinking rum and beer prior to their trip to the Nelsons' home. They were both armed with .32 caliber pistols, but appellant's pistol would not fire at the Nelsons' home because he lost the firing pin. The appellant's statement confirmed the gruesome details of the attack on the Nelson family. He stated that by the time he entered the back bedroom, Giles had already shot and stabbed `everyone.' In his own words the appellant stated:

"`I goes off in the other room where he [Giles] at ... shot and stabbed them all there, you know, the kids and... he looks at me and tells me, you know, that I had to do something and I told him that I didn't have a knife so he gave me one and I cut the mother and another man and cut the boy and that's all I did.'

"The appellant further stated that he used a butcher knife that Giles had, apparently, obtained from inside the Nelsons' home. He also said that the `little girl' at one point begged him not to do it, and that the `woman' moved right before he stabbed her. The appellant explained that when he stabbed the `woman' he `really was just so gone, I just closed my eyes' and stabbed wildly.

"Although his confession was admitted into evidence, the appellant did not testify in his own behalf at trial, except during the suppression hearing on the issue of the voluntariness of his confession. In defense, he presented excerpts of the transcribed testimony, from his first trial, of several state's witnesses for impeachment purposes. He also presented his alleged accomplice, Arthur Lee Giles, who invoked his Fifth Amendment rights, and refused to testify. Appellant's theory in defense was that his participation in the double murder fell short of capital murder because Giles did all the actual killing and he, the appellant, only did what Giles instructed him to do.

"The jury found the appellant "guilty as charged in the indictment" and the trial court, in accordance with the jury's recommendation, sentenced the appellant to death by electrocution."

520 So.2d at 545-46.

Initially, we note that on direct appeal all issues were scrutinized, including those issues reviewable only under the "plain error" doctrine. There is no plain error review in an appeal from the denial of a Rule 32 petition.

I.

Jones claims that the trial court erred in adopting the State's proposed findings of fact and conclusions of law in its order denying his Rule 32 petition. Jones specifically asserts that adopting the State's findings was error, because, he says, those findings...