McWhorter v. State

• Citation: 142 So.3d 1195
• Decision Date: 22 November 2013
• Docket Number: CR–09–1129.
• Parties: Casey A. McWHORTER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

142 So.3d 1195

Casey A. McWHORTER
v.
STATE of Alabama.

CR–09–1129.

Court of Criminal Appeals of Alabama.

Sept. 30, 2011.
Rehearing Denied Feb. 10, 2012.
Certiorari Denied Nov. 22, 2013

Alabama Supreme Court 1110609.

[142 So.3d 1202]

Colleen Quinn Brady, New York, New York; Michael Z. Goldman, New York, New York; Robert C. Newman, New York, New York; and Benjamin E. Rosenberg, New York, New York, for appellant.

Troy King and Luther Strange, attys. gen., and Kevin Wayne Blackburn, asst. atty. gen., for appellee.

JOINER, Judge.¹

Casey A. McWhorter appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. We affirm.

In March 1994, McWhorter was convicted of capital murder in connection with the death of Edward Lee Williams because it was committed during the course of a first-degree robbery. See§ 13A–5–40(a)(2), Ala.Code 1975. Following the penalty phase, the jury, by a vote of 10–2, recommended that McWhorter be sentenced to death. The circuit court accepted the jury's recommendation and sentenced McWhorter to death.

This Court affirmed McWhorter's conviction and sentence on direct appeal. See McWhorter v. State, 781 So.2d 257 (Ala.Crim.App.1999) (“ McWhorter I ”). The Alabama Supreme Court affirmed this Court's judgment, Ex parte McWhorter, 781 So.2d 330 (Ala.2000) (“ McWhorter II ”), and the United States Supreme Court subsequently denied certiorari review on April 16, 2001. McWhorter v. Alabama, 532 U.S. 976, 121 S.Ct. 1612, 149 L.Ed.2d 476 (2001).

On April 11, 2002, McWhorter, through counsel, filed a timely Rule 32 petition in the Marshall Circuit Court, attacking his conviction and death sentence. The case was assigned to Judge David Evans, who did not preside over McWhorter's trial and who retired in 2007.² The State filed an answer and a motion to dismiss McWhorter's petition. After several years of litigation, on February 28, 2005, McWhorter filed the amended Rule 32 petition that is the subject of this appeal, in which he reasserted and expanded the claims asserted in his original Rule 32 petition. On May 11, 2005, the State filed an answer

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and a motion to dismiss certain claims in McWhorter's amended petition, and McWhorter responded. A postconviction evidentiary hearing was held on September 27, 2005, and Judge Evans subsequently issued an order, dated October 19, 2006, and filed on November 1, 2006, summarily dismissing several of the claims in McWhorter's amended petition on the grounds that the claims were insufficiently pleaded, were meritless on their face, or were procedurally barred.

McWhorter and the State also filed several motions for discovery that were not ruled on before Judge Evans retired in 2007. After Judge Evans retired, Judge Liles C. Burke, who was then a Marshall County district court judge, was appointed as a special circuit court judge, and he considered and ruled on the discovery motions. Judge Burke conducted a postconviction evidentiary hearing on August 26–28, 2009, on the remaining claims in McWhorter's petition that had not been summarily dismissed.

Following the postconviction hearing, McWhorter filed a brief for the circuit court's consideration. On March 29, 2010, the circuit court denied McWhorter's postconviction petition in a lengthy, 77–page written order. McWhorter subsequently filed an objection to the circuit court's order, which the circuit court denied. This appeal followed.

Background

This Court's decision on direct appeal provides a detailed account of the facts of McWhorter's crime as originally set out by the circuit court in its sentencing order. See McWhorter I, 781 So.2d at 265–66. Thus, we will not repeat those facts, many of which are not relevant to the issues now before this Court. In addition to the facts we state here, where further facts are necessary and relevant to the resolution of the postconviction claim presented, they will be set out in the corresponding section of this opinion. This Court has taken judicial notice of all of its records relating to McWhorter's previous proceeding. See Nettles v. State, 731 So.2d 626, 629 (Ala.Crim.App.1998); Hull v. State, 607 So.2d 369, 371 n. 1 (Ala.Crim.App.1992).

On appeal from the denial of his postconviction claims, McWhorter raises claims of juror misconduct during jury selection and deliberation; ineffective assistance of penalty-phase counsel in failing to object to the sentencing order and in failing to further investigate and present additional mitigating evidence; improper exclusion of evidence at the postconviction hearing on the grounds that it was hearsay or was not set forth in the amended Rule 32 petition; a Brady³ violation for the State's alleged failure to disclose mitigation evidence; and ineffective assistance of trial counsel in failing to object to McWhorter's being transported in and out of the courtroom in handcuffs in view of the jury. McWhorter originally presented 12 claims in his amended Rule 32 petition. The circuit court summarily dismissed claims I–IV, V(B), V(C), VI–VIII, X, and XI. The circuit court conducted an evidentiary hearing on claims V(A) (juror misconduct) and claims IX(A) and XII (ineffective assistance of penalty-phase counsel) before denying those claims.

At the penalty-phase proceeding, McWhorter's attorneys' presented evidence in mitigation that McWhorter had had a difficult childhood and was a “good kid” who became involved with the wrong crowd. Vonnie Salee, who had worked with McWhorter at the Food World grocery store, testified that McWhorter was one of the better bag boys and was a hard

[142 So.3d 1204]

worker. Van Reid, who had employed McWhorter as a busboy at his restaurant, described McWhorter as a good kid and a dependable worker. Elsie Garrison, McWhorter's paternal aunt, testified that McWhorter was 2 when his parents divorced and that he lived with her when he was 16 years old because his mother believed he was using drugs, which belief Garrison stated proved to be false. Garrison described her nephew as a very bright, intelligent, compassionate young man who had had a difficult childhood. Carolyn Rowland, McWhorter's mother, stated that she divorced McWhorter's father, remarried shortly thereafter, and moved to Tennessee. According to Rowland, because McWhorter was so young when she divorced his father and moved to Tennessee that he believed that his stepfather, David Rowland, was his father. She stated that they moved back to Marshall County when McWhorter was five years old and he was told sometime shortly thereafter that his father was Tommy McWhorter. According to Rowland, as McWhorter matured in age, his biological father instructed him that he did not have to listen to David Rowland, his stepfather. Rowland described McWhorter as a good, respectful kid until he became involved with the wrong crowd when he was around 16 years old.

In its sentencing order, the trial court found one aggravating circumstance—that the capital offense was committed while McWhorter was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit a robbery. The trial court found two statutory mitigating circumstances: (1) that McWhorter had no significant history of prior criminal activity, and (2) McWhorter's age—he was only 18 years old at the time of the offense. As to nonstatutory mitigating circumstances, the trial court found that McWhorter had had “a difficult childhood following the divorce of his parents, a good reputation, and a substantially good record for a person his age.” McWhorter I, 781 So.2d at 330. After also considering the jury's advisory verdict of death, the trial judge concluded that the one statutory aggravating circumstance outweighed the statutory and nonstatutory mitigating circumstances and sentenced McWhorter to death.

Specifically, this Court, on direct appeal, stated as follows in considering the constitutionally of the trial court's sentencing order as to the aggravating circumstance and the mitigating circumstances:

“In the present case, the trial court entered a sentencing order specifically setting out the statutory mitigating circumstances and stated that it had thoroughly and conscientiously considered all statutory and nonstatutory mitigating circumstances that reasonably pertained to the case, particularly the evidence presented by the appellant at trial, as well as the evidence of mitigating circumstances presented by the appellant at the sentencing phase. The trial court found that the appellant's age—he was 18 years old at the time of the offense—constituted a mitigating circumstance, but that the statutory mitigating circumstance concerning the appellant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law at the time of the offense did not exist. The trial court further found, as nonstatutory mitigating circumstances, that the appellant had ‘a far less than perfect childhood following the divorce of his parents, a good reputation with at least some individuals and a substantially good work record for a person his age.’ The sentencing order further states that the trial court carefully weighed the one existing statutory aggravating circumstance,

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i.e., that the capital offense was committed while the appellant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit a robbery, against the statutory and nonstatutory mitigating circumstances. The trial court also carefully considered the jury's advisory recommendation of death, and found that the aggravating circumstance outweighed the mitigating circumstances. There is no indication in the record that the trial court abused its discretion in arriving at this determination and, because of the lack of evidence presented by the appellant concerning his possible intoxication, the trial court's finding that that mitigating...