McNair v. State

• Decision Date: 03 July 1997
• Docket Number: CR-95-0470
• Parties: Willie McNAIR v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 828

706 So.2d 828

Willie McNAIR v. STATE.

CR-95-0470.

Court of Criminal Appeals of Alabama.

July 3, 1997.

Opinion Supplementing Decision on

Overruling Rehearing Aug. 22, 1997.

Certiorari Denied Nov. 21, 1997

Alabama Supreme Court 1961963.

Certiorari Denied April 6, 1998. See 118 S.Ct. 1396.

Randall S. Susskind and Bryan A. Stevenson, Montgomery, for appellant.

Bill Pryor, atty. gen., and John Gibbs, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

This is an appeal from the denial of a petition for post-conviction relief, Ala.R.Crim.P. 32. On July 12, 1990, the appellant, Willie McNair, was indicted for the capital offense of murder committed during a robbery in the first degree or an attempt thereof, a violation of § 13A-5-40(a)(2), Code of Alabama 1975. On April 18, 1991, he was found guilty after a jury trial of the capital offense charged in the indictment. The jury by a vote of 10 to 2, recommended a sentence of death, and on May 16, 1991, the trial court, adopting the recommendation of the jury, sentenced the appellant to death. On July 24, 1992, on direct appeal, we remanded the case to the trial court for new sentencing proceedings before the jury and the trial court because we determined that evidence of the appellant's prior Florida conviction based upon a plea of nolo contendere had been improperly admitted and considered in the sentencing proceedings. McNair v. State, 653 So.2d 320 (Ala.Cr.App.1992).

On January 25-28, 1993, a new sentencing proceeding was held before a new jury, after the appellant's motion for a change of venue had been granted and the case had been transferred to Montgomery County. In this proceeding, the jury recommended a sentence of life imprisonment without the possibility of parole by a vote of eight to four. On February 26, 1993, after a separate sentencing hearing before the trial court, the trial court rejected the jury's recommendation and sentenced the appellant to death. The circuit court filed its return to remand on April 23, 1993. Finding (1) that the trial court's new sentencing order was deficient because it did not fully comply with the appropriate statutes and because it was incomplete, and (2) that the record did not contain a presentence report, we again remanded the case to the trial court on August 13, 1993, with instructions to reconsider its sentence determination; to enter a new sentencing order, making specific written findings on the existence or nonexistence of each statutory aggravating and mitigating circumstance ¹ and on any additional nonstatutory mitigating circumstance and stating the reasons if appropriate why any aggravating circumstance or circumstances outweighed any mitigating circumstances; and to supplement the record on appeal with the presentence report. McNair v. State, 653 So.2d 343 (Ala.Cr.App.1993).

The trial court, in response to our second remand, entered an amended sentencing order on August 18, 1993, and filed a return to our remand on August 23, 1993. This amended order only partially complied with our remand, and we remanded the case a third time on September 30, 1993, again instructing the trial court to enter a proper and correct sentencing order as required by statute and by our prior remand. McNair v. State, 653 So.2d 347 (Ala.Cr.App.1993). ² On October 6, 1993, the trial court entered yet another sentencing order, and filed its return to remand on October 14, 1993. Its new sentencing order complied with our instructions, and on January 21, 1994, we affirmed the appellant's conviction and sentence of death. McNair v. State, 653 So.2d 351 (Ala.Cr.App.1994). The Alabama Supreme Court affirmed the conviction and death sentence on September 2, 1994. Ex parte McNair, 653 So.2d 353 (Ala.1994). On February 21, 1995, the United States Supreme Court denied the appellant's petition for certiorari review. McNair v. Alabama, 513 U.S. 1159, 115 S.Ct. 1121, 130 L.Ed.2d 1084 (1995).

The appellant filed his post-conviction petition in Henry County pursuant to Rule 32 on July 5, 1995. On July 27, 1995, the district attorney filed a motion for summary disposition. On August 1, 1995, the attorney general filed an answer to the petition and a motion for partial dismissal as to those claims that he said were procedurally barred and insufficiently pleaded. On August 3, 1995, the circuit court granted the attorney general's motion for partial dismissal. On August 24, 1995, the appellant filed an amendment to his petition. On August 30, 1995, the circuit court entered an order finding that all of the issues raised in the petition as amended were barred, except those issues raising "ineffective assistance of counsel, failure of the state to turn over to the defense exculpatory evidence, and unconstitutionality of the death penalty due to [a] pattern of racial bias in its imposition." The order set those issues not precluded for an evidentiary hearing. On October 24, 1995, the appellant filed a second amendment to his petition. The amendments, while raising a few new claims, essentially reasserted the claims raised in the original petition. The petition and the amendments are unverified. On November 8, 1995, an evidentiary hearing was held, and on November 13, 1995, the circuit court entered its order denying the petition.

On this appeal from the denial of his Rule 32 petition, the appellant raises a number of issues that were procedurally barred from the circuit court's consideration and consequently are barred from our review. He also raises issues concerning the ineffectiveness of counsel, as well as other issues. We will point out those issues that are procedurally barred and will address all issues raised by the appellant in his brief in the order in which they were presented.

The facts of this case are largely undisputed. On the night of May 21, 1990, the appellant and Olin Grimsley ³ went to the home of Ella Foy Riley in Henry County. Ms. Riley was an elderly widow, and she lived alone. The appellant, who had done yard work for Ms. Riley on previous occasions, asked to borrow money from Ms. Riley, but she refused. He then asked her if he could have a drink of water. When Ms. Riley turned away to get the appellant a glass of water, the appellant grabbed her from behind and began cutting and stabbing her in the throat with his pocketknife. During the attack, the blade of the appellant's pocketknife broke, and Grimsley handed him a knife from Ms. Riley's kitchen, with which he continued the assault. When Ms. Riley was released from the appellant's grasp, she fell to the floor and died. The cause of death was loss of blood due to the cuts to her throat and strangulation. Ms. Riley not only received deep knife cuts to her throat, but she also suffered numerous bruises to her throat and face, and the bony structure of her throat was crushed. After the attack, the appellant took Ms. Riley's purse from the kitchen counter, and he and Grimsley left in the appellant's automobile. A short distance away, they rummaged through the purse and then threw the purse and its contents along the side of the road. The following day, the appellant confessed to attacking and stabbing Ms. Riley and to taking her purse. He also led officers to where they had discarded Ms. Riley's purse, where it was recovered. The appellant did not testify at trial. The theory of his defense was that when Ms. Riley refused to lend him money, he got angry, lost control, and stabbed her, and that he took her purse only as an afterthought. His counsel argued that under these facts, the appellant was guilty of the lesser included offense of murder, and that although the murder was intentional, it was not committed during the course of a robbery and therefore could not be punished capitally. See McNair v. State, 653 So.2d at 322-23.

At the hearing on the Rule 32 petition, the appellant did not testify. In fact, he called only one witness, L.D., a member of the jury in the guilt phase of the trial, for the sole purpose of substantiating his claim that the jury verdict was tainted because extraneous material had been injected into the deliberation process, i.e., reading of passages from a Bible in the jury room and praying during deliberation. He offered four juror affidavits, from L.D. and from three other members of the jury, that related to L.D.'s reading aloud from his Bible and praying in the jury room during deliberation; however, upon objection by the state, the affidavits were not admitted into evidence. He also offered a certified copy of his prison record, which was admitted into evidence insofar as it pertained to his conduct in prison before his resentencing.

Aside from the claim that the jury considered extraneous material during its deliberation, the appellant's principle argument in his brief on appeal is that his alleged history of drug abuse and his alleged use of crack cocaine on the day the crime was committed created a reasonable doubt as to his ability to entertain the specific intent to kill, and that his trial counsel were constitutionally ineffective for failing to present "numerous witnesses who were available and would have testified" regarding his history of drug abuse and his use of crack cocaine on the day of the crime. He states in his brief:

"In addition, there are serious questions about the propriety of Mr. McNair's conviction because he did not specifically intend to kill the victim in this case and because of his trial counsel's ineffectiveness. Overwhelming evidence of Mr. McNair's history of drug abuse and use of crack cocaine on the day of the crime would have created a reasonable doubt about his ability to form the specific intent to kill required under Alabama capital law. Because Mr. McNair's lawyers were ineffective, however, these facts were neither sufficiently developed nor presented to the jury or the judge. Counsel failed to present numerous witnesses who were available and who would have testified...