Mashburn v. State

Citation148 So.3d 1094
Decision Date12 July 2013
Docket NumberCR–11–0321.
PartiesEllis Louis MASHBURN, Jr. v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Lauren Foshee, Jacquelyn Hutzell, and Megan Stephens, Birmingham; and Richard Carlton Keller, Birmingham, for appellant.

Luther Strange, atty. gen., and Richard D. Anderson, asst. atty. gen., for appellee.


KELLUM, Judge.

Ellis Louis Mashburn, Jr., appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his five capital-murder convictions and his resulting sentence of death.

In 2006, Mashburn pleaded guilty to, and was found by a jury to be guilty of, five counts of capital murder in connection with the murders of his grandmother, Clara Eva Birmingham, and his stepgrandfather, Henry Owen Birmingham, Jr. Specifically, Mashburn was convicted of: (1) the murder of Mr. Birmingham during the course of a robbery, see § 13A–5–40(a)(2), Ala.Code 1975; (2) the murder of Mrs. Birmingham during the course of a robbery, see § 13A–5–40(a)(2), Ala.Code 1975; (3) the murder of Mr. Birmingham during the course of a burglary, see § 13A–5–40(a)(4), Ala.Code 1975; (4) the murder of Mrs. Birmingham during the course of a burglary, see § 13A–5–40(a)(4), Ala.Code 1975; and (5) the murders of two persons by one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala.Code 1975. By a vote of 11–1, the jury recommended that Mashburn be sentenced to death for his capital-murder convictions. The trial court followed the jury's recommendation and sentenced Mashburn to death. On appeal, this Court remanded the case for the trial court to issue an amended sentencing order in compliance with § 13A–5–47(d), Ala.Code 1975. After the trial court complied with our instructions on remand, this Court affirmed Mashburn's convictions and sentence of death. Mashburn v. State, 7 So.3d 453 (Ala.Crim.App.2007). The Alabama Supreme Court denied certiorari review and this Court issued a certificate of judgment on October 24, 2008. The United States Supreme Court subsequently denied certiorari review on June 1, 2009. Mashburn v. Alabama, 556 U.S. 1270, 129 S.Ct. 2736, 174 L.Ed.2d 250 (2009).

In its amended sentencing order,1 the trial court stated the following facts regarding the crimes:

“On the 30th day of October 2002, the bodies of Henry Owen Birmingham, Jr. and Clara Eva Birmingham were discovered in their home at 205 Melanie Lane, Alexandria, Calhoun County, Alabama. Both had been severely beaten and stabbed. It was determined that the deaths occurred during the evening hours of October 29, 2002.
“The Calhoun County Sheriff's Office, with primary assistance from the Alabama Bureau of Investigation, the Department of Forensic Sciences, undertook the investigation. The crime scene, as the evidence reflects, was extremely bloody and it was apparent that a substantial struggle had taken place between the victims and their assailant or assailants. Too, it appeared that whoever had entered the home had not done so by forcible entry against the structure itself and, inferentially, had more likely than not been admitted entry initially.
“Numerous items of evidence were collected by both the Calhoun County Sheriff's Office investigators and the Alabama Department of Forensic Sciences. The scene was kept secured and guarded for several days which enabled the DFS criminalists to study, differentiate and collect trace evidence for analysis. While the scene was in great disarray, indicating a substantial and relatively lengthy struggle, especially in light of the victims' ages and states of health, and even though there was a large quantity of blood from the victims, DFS scientists were able to identify and recover blood spatter residue that was not from either of the victims.
“Through various leads and investigation, three suspects were identified. These persons were Ellis Louis Mashburn, Jr., the grandson of Clara Eva Birmingham, Tony Brooks and Jeremy Butler....
“... Based upon the evidence presented, the Court finds:
“1. [Mashburn], while accompanied by at least one other individual, went to the home of Henry Owen Birmingham, Jr., and Clara Eva Birmingham in the late afternoon or early evening hours of October 29, 2006. The apparent reason for the visit was for the purpose of the theft of property and perhaps for the purpose of confronting Henry Owen Birmingham, Jr. In any event, the Birmingham home was invaded either by force or by the application of force to an occupant after entry by [Mashburn] as proven by trace evidence recovered. By testimony presented by a witness to whom [Mashburn] had said to have confessed, he and his accomplice, Tony Brooks, were armed with at least a knife and a hatchet.
“2. The fact that certain items of personal property, namely jewelry, of Clara Eva Birmingham were recovered from or were traceable to [Mashburn] after the home invasion, the reasonable inference is that [Mashburn] went to the Birmingham residence for the purpose of obtaining money or things of value.
“3. The bodies of Henry Owen Birmingham, Jr., and Clara Eva Birmingham were transported to the Cooper Green Hospital forensic autopsy facility where they were each subjected to a post-mortem examination by Dr. Joseph Embry, State Medical Examiner. The results of the autopsies were that each victim died from multiple stab and sharp instrument wounds

and blunt-force trauma to the head. Crime scene photographs, autopsy photographs and the testimony of Dr. Embry showed that each victim suffered repeated wounds from a knife or knife-like instrument, that the wounds were vicious and delivered in such a way as to indicate an attack whereby each defended themselves and were obviously aware of the extent and nature of the attack and their impending deaths. The crime scene, too, indicated that both victims resisted attack and bore witness to the violence associated with their deaths.

“4. Whether either victim was able to appreciate the plight and suffering of the other or not, the crime scene and the autopsy findings clearly indicate each would have been aware of the soon-to-be-fatal assault being committed upon them individually.
“5. Other than [Mashburn's] plea of guilty, the most compelling evidence was the DNA analysis and comparison of crime scene blood with that of [Mashburn] and the testimony of a former cellmate of [Mashburn], Michael Wayne Simpson. Four blood traces recovered from the scene, three in the master bedroom and one from the wall in the den, matched that of the Defendant, Ellis Mashburn, with a computed population frequency of 1:1.2 quintillion non-related white individuals and 1:1.3 quintillion non-related black individuals. To strengthen the connection of the trace evidence recovered, [Mashburn] was observed to have a fresh laceration on his left hand that he stated he had himself sewed up after ‘cutting it on a fence’ at his residence. Additionally, Michael Wayne Simpson testified that [Mashburn] had confessed to him about the killing of his grandmother and step-grandfather while accompanied by Tony Brooks. His testimony relating what he stated was told to him was confirmed by various aspects of the crime scene.”

Mashburn timely filed his Rule 32 petition on October 21, 2009, alleging that the State had suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that he had been denied the effective assistance of counsel during both the guilt and penalty phases of his trial. The State filed an answer and a motion to dismiss on February 9, 2010. The State argued that Mashburn's Brady claim was precluded by Rules 32.2(a)(2) and (a)(5), Ala. R.Crim. P., was insufficiently pleaded, and was meritless. The State also argued that Mashburn's various claims of ineffective assistance of counsel relating to the guilt phase of his trial were waived by virtue of his guilty plea, were insufficiently pleaded, and/or were meritless and that Mashburn's various claims of ineffective assistance of counsel relating to the penalty phase of his trial were insufficiently pleaded and/or were meritless. On March 3, 2010, Mashburn filed a motion for discovery. On March 12, 2010, the State filed a motion to withhold ruling on Mashburn's discovery request on the ground that all of Mashburn's claims were due to be summarily dismissed and, thus, that discovery was unnecessary.

On April 1, 2010, the circuit court issued a lengthy order summarily dismissing Mashburn's petition. The record reflects that the parties were not notified of the circuit court's April 2010 order until August 2011. Subsequently, Mashburn filed a second Rule 32 petition requesting an out-of-time appeal from the summary dismissal of his first petition. After a hearing, the circuit court granted Mashburn's request for an out-of-time appeal. This appeal followed.

Standard of Review

[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 postconviction proceeding and the circuit court resolves those disputed facts, [t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992) ).

“On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence.” Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008). Additionally, [i]t is well settled that ‘the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.’ Nicks v. State, 783 So.2d...

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