Magwood v. State

• Decision Date: 10 May 1996
• Docket Number: CR-92-843
• Citation: 689 So.2d 959
• Parties: Billy Joe MAGWOOD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 959

689 So.2d 959

Billy Joe MAGWOOD v. STATE.

CR-92-843.

Court of Criminal Appeals of Alabama.

May 10, 1996.

Rehearing Denied Aug. 23, 1996.

Certiorari Denied Feb. 28, 1997 Alabama Supreme Court 1952019.

Marguerite Del Valle and James Power, Jr., New York City; and Joel Williams, Troy, for appellant.

Jeff Sessions, Atty. Gen., and Andy Poole, Deputy Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Billy Joe Magwood, was convicted on June 2, 1981, of the capital murder of the sheriff of Coffee County, in violation of § 13-11-2(a)(5), Code of Alabama 1975. ¹ The murder occurred on March 1, 1979. ² Thereafter, the appellant was sentenced to death by electrocution, and his conviction and sentence were affirmed on direct appeal to this court. Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982). That decision was affirmed by the Alabama Supreme Court on certiorari review. Ex parte Magwood, 426 So.2d 929 (Ala.1983). On July 13, 1983, the appellant filed a petition for writ of error coram nobis in the Circuit Thereafter, on March 26, 1985, the United States District Court for the Middle District of Alabama upheld the appellant's conviction upon a review of a petition for a writ of habeas corpus filed by the appellant, but conditionally granted the writ as to the sentence, based on the failure of the sentencing court to find two mitigating circumstances. Magwood v. Smith, 608 F.Supp. 218 (M.D.Ala.1985). This decision was affirmed by the United States Eleventh Circuit Court of Appeals. Magwood v. Smith, 791 F.2d 1438 (11th Cir.1986).

Court of Coffee County, which the trial court denied. This court affirmed the denial, Magwood v. State, 449 So.2d 1267 (Ala.Cr.App.1984), and a motion to permit the filing of an out-of-time appeal was subsequently denied by the Alabama Supreme Court. Ex parte Magwood, 453 So.2d 1349 (Ala.1984).

A resentencing hearing was held in the Circuit Court of Coffee County, and the appellant was again sentenced to death by electrocution. The resentencing was affirmed by this court, Magwood v. State, 548 So.2d 512 (Ala.Cr.App.1988), and that decision was affirmed by the Alabama Supreme Court, Ex parte Magwood, 548 So.2d 516 (Ala.1988). A petition for a writ of certiorari was then filed in the United States Supreme Court, which that Court denied. Magwood v. Alabama, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989). Rehearing was thereafter denied. Magwood v. Alabama, 493 U.S. 1037, 110 S.Ct. 764, 107 L.Ed.2d 779 (1990).

Pursuant to former Temp. Rule 20, Ala.R.Crim.P., ³ the appellant filed a petition in the Circuit Court of Coffee County seeking relief from his conviction and sentence of death. The State filed a response, arguing that the appellant had failed to plead any specific facts in support of his allegations, and stating that several grounds were precluded. Temp.Rule 20.2, Ala.R.Crim.P. Additionally, the State filed a notion for more definite statement or, in the alternative, for a partial dismissal. The trial court then ordered the appellant to file an amended petition or to provide specific facts in support of his allegations. Thereafter, the appellant amended his petition seven times, the final amendment being filed one week before the scheduled evidentiary hearing. The State responded by arguing that certain issues were precluded by Temp.Rule 20.2, Ala.R.Crim.P., and that the allegations were without merit. The petition was heard on April 15, 1992, and again on August 12 and 13, 1992; thereafter, on January 13, 1993, the trial court denied the petition. This appeal follows.

In this petition, the appellant claimed ineffective assistance of trial and appellate counsel and cited 47 alleged instances of ineffective assistance by his trial counsel, his appellate counsel, or both. He further alleged that he was denied his right to a full appellate review of his capital conviction and sentence because the trial court proceedings were not completely transcribed. He argued that his right to a fair trial by an impartial jury was violated by the trial court's failure to grant a change of venue. He argued that he was deprived of an impartial jury because certain potential jurors had been improperly excluded by the trial court. He argued that his rights to a fair trial by impartial jury were violated because the trial court restricted the voir dire examinations of perspective jurors. He argued that the prosecutor introduced prejudicial and inflammatory photographs and diagrams in violation of his constitutional rights. He argued that his Fifth, Eighth, and Fourteenth Amendment rights were violated by the imposition of the death sentence by the court on resentencing. He argued that his rights to a constitutionally fair sentencing hearing were violated by the trial court's instructions, which limited consideration of mitigating evidence.

He further argued that the application of the death penalty and the execution of mentally diseased persons violate the United States Constitution and the Alabama Constitution. He argued that Alabama's death The appellant argued that certain newly discovered material facts required that his conviction and death sentence be vacated; this newly discovered evidence, he says, included statements made by the appellant and others dealing with his mental condition and other nonstatutory mitigating circumstances, as well as alleged misconduct by the State, certain jurors, and the judge who had presided over his trial and sentencing. The appellant submitted that the trial court's rejection of his insanity defense rendered his conviction illegal and unconstitutional. He argued that he was improperly and unconstitutionally tried and sentenced because, he says, during trial, he was under treatment for a mental disease and subject to the influence of antipsychotic drugs. He argued that his conviction and sentence were rendered under the influence of passion and prejudice by jurors, a judge, and defense counsel, all of whom knew the victim.

penalty is applied arbitrarily and discriminatorily and that black persons are significantly more likely to receive a death sentence in cases involving white victims. He argued that the re-sentencing court's failure to convene a jury and to weigh the jury's advisory verdict in sentencing him was contrary to constitutional law. The appellant argued that his death sentence exceeds the maximum sentence authorized by law for a violation of § 13-11-2(a)(5), Code of Alabama 1975, where no aggravating circumstances, as set forth in § 13-11-6, Code of Alabama 1975, existed.

The trial court thereafter issued an opinion and order concerning this final amended Rule 32, Ala.R.Crim.P., petition by the appellant, succinctly dealing with each issue raised by the appellant, determining either that the claim was procedurally barred, was without merit, or both. This opinion and order by the trial court is attached to this opinion as Appendix A, and is adopted by this Court.

I

The appellant argues that he was entitled to a full and fair hearing on the claims set forth in his petition. The appellant makes no further specific allegations within this claim.

The petitioner's burden of proof in a Rule 32 petition as established by Rule 32.3, Ala.R.Crim.P. (formerly Rule 20.3), is proof by a preponderance of the evidence of the facts which would entitle him to relief. Although the State has the burden of pleading any ground of preclusion, once that ground has been pleaded, the petitioner must disprove its existence by a preponderance of the evidence. Moreover, pursuant to Rule 32.9(a) (formerly Rule 20.9(a)), "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." An evidentiary hearing need not be held if the trial court has before it "facts supporting the position of each party [that] are fully set out in ... supporting affidavits." Johnson v. State, 564 So.2d 1019, 1021 (Ala.Cr.App.1989).

The record demonstrates that the trial court was supplied with a number of affidavits, depositions, reports, statements, and arguments concerning the issues raised by the appellant. Additionally, most of the claims raised by the appellant have been or could have been previously raised; therefore, as to these claims, the petitioner may not raise an issue that was previously raised and addressed in a prior proceeding, or that could have been addressed in a prior proceeding. See Rule 30.2, Ala.R.Crim.P. (formerly Rule 20.2, Ala.R.Crim.P.Temp.).

Based on the claims raised by the appellant and the documents before the trial court when the petition was denied, the trial court's summary denial of this petition was proper.

II

The appellant argues that his death sentence was unconstitutional, that it was not authorized by the law, and that the court was without jurisdiction to impose this sentence. The appellant further argues that, for these reasons, his petition was not subject to the preclusionary grounds of Rule 32.2(a), Ala.R.Crim.P. However, the record indicates that some of these claims have been previously addressed and rejected by this court The appellant argues that the death penalty was improperly imposed, because, he says, his sentence was not supported by a statutory aggravating circumstance, in that there was not a corresponding aggravating circumstance set out in former Code of Alabama 1975, § 13-11-6, for his conviction under former § 13-11-2(a)(5). In Magwood v. State, 548 So.2d 512, 513 (Ala.Cr.App.1988), this court previously held, in affirming the appellant's resentencing to death by electrocution, that the offense defined at former § 13-11-2(a)(5), former Code of Alabama 1975, was on its face a capital offense. Furthermore, this court noted that the murder of a law enforcement officer in the course of his duties is an offense for which the death penalty is generally imposed throughout...