Nicks v. State

• Decision Date: 01 October 1999
• Citation: 783 So.2d 895
• Parties: Harry NICKS v. STATE.
• Court: Alabama Court of Criminal Appeals

783 So.2d 895

Harry NICKS v.STATE.

CR-96-2446.

Court of Criminal Appeals of Alabama.

October 1, 1999.

Rehearing Denied November 12, 1999.

Robert F. Battle, Birmingham, for appellant.

Bill Pryor, atty. gen.; and J. Clayton Crenshaw and Rosa H. Davis, asst. attys. gen., for appellee.

FRY, Judge.¹

The appellant, Harry Nicks, was convicted of murder made capital because it was committed during a robbery, see§ 13A-5-40(a)(2),Code of Alabama 1975.Following the jury's recommendation, the trial court sentenced Nicks to death.His conviction and his sentence were affirmed on appeal.Nicks v. State,521 So.2d 1018(Ala.Cr.App.1987), aff'd, 521 So.2d 1035(Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948(1988).Nicks filed his initial post-conviction petition on January 17, 1989.²The petition was amended four times and the circuit court held two evidentiary hearings.³On August 13, 1997, the circuit court issued a written order in which it denied the requested relief as to Nicks's conviction but granted the relief as to his sentence, ordering a new sentencing hearing.The trial court found that because a prior conviction of Nicks's, which had been considered as an aggravating circumstance, had been set aside, Nicks was entitled to a new sentencing hearing in which the evidence of the vacated prior conviction would not be admitted.Nicks appeals the denial of his relief as to his conviction.

It 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."State v. Tarver,629 So.2d 14, 19(Ala.Cr. App.1993);Brownlee v. State,666 So.2d 91, 93(Ala.Cr.App.1995);Grayson v. State,675 So.2d 516, 519(Ala.Cr.App.1995), cert. denied, 519 U.S. 934, 117 S.Ct. 309, 136 L.Ed.2d 225(1996).See alsoHorsley v. State,675 So.2d 908, 909(Ala. Cr.App.1996)(in which this court, in an appeal of denial of the appellant's Rule 32, Ala.R.Crim.P., petition in a death penalty case, held that the circuit court properly applied the procedural bars set out in Rule 32.2).

In Nicks v. State, Judge Patterson, writing for this Court, set forth the facts surrounding the underlying crime:

"This case arises out of an incident which occurred on March 5, 1983, in the Bessemer Pawn Shopat 315 N. 19th Street, Bessemer, Alabama.The pawn shop was owned and operated by Robert and Isadore Back.At approximately 2:30 p.m., a black male entered the shop.He was wearing a red vinyl jacket, blue jeans, and a clear plastic shower cap on his head.He had acne scars on the right side of his face.He was carrying a red canvas tote bag which had a white shoulder strap.Robert Back and an employee, Debra Lynn Love, were in the shop at the time.The man approached Back and said, `Man, I need some money.I got to get out of town quick.'He then pulled a pistol from the tote bag, pointed it at Back, and told Love not to move.Back took money from a cash drawer and put it in the tote bag.The robber demanded more money.He demanded `big bucks,' and continuously called Back a `god damned old man' and `mother fucking old man.'He threatened to kill Back and pulled a second pistol from the bag.Back took money from a second cash drawer and put it in the bag.The robber demanded more money.He wanted `big bucks' and `big bills.'He ordered Love to lie on the floor and she complied.Back opened the cash drawer in the safe and handed more money to the robber and told him, `This is all I have.'The robber ordered Back to lie next to Love on the floor.As Back and Love lay face down on the floor, the robber fired three shots.One shot entered the back of Love's head; one entered the back of Back's head, penetrating his brain; and one went into a rubber mat on the floor.Back either died instantly or in a matter of minutes from the bullet wound to his head; however, the bullet fired into Love's head lodged in her skull and she survived.As soon as Love heard the robber leave the shop, she telephone the police, giving them a detailed description of the robber.

"Subsequently, Love identified appellant, in two lineups conducted by the police, as the person who robbed the pawn shop and shot Back and her.She also made a positive in-court identification of appellant.

"Venita Bishop was working as a cashier in a nearby store on the date of the incident.She observed a black male, fitting the description of the robber, in her store around 12:30 to 12:45 p.m.Subsequently, she identified appellant, in a lineup, as the person she observed in the store where she worked on the day of the incident.She also made a positive in-court identification of appellant.

"A firearms expert determined that two of the bullets fired by the robber were .22 caliber and fired from the same gun.The two pistols displayed by the robber were never found.The autopsy performed on Back's body disclosed stippling, or powder burns, around the wound to the back of his head, indicating that the pistol from which the shot was fired was very close to his head, probably within two inches.

"Appellant did not testify in his own behalf during the guilt phase of the trial.He called only two witnesses: Dr. Clifford B. Hardin, a psychiatrist, and Gordon Burkhead, his landlord, in support of his insanity plea."

521 So.2d at 1020-21.

On August 18, 1997, the circuit court entered its order denying Nicks's petition as to his conviction, but granting Nicks's request for a new sentencing hearing.(C. 542-44.)

In its order, the circuit court found that the following claims raised in the petition were precluded by Rule 32.2(a)(3) and/or (a)(5), Ala.R.Crim.P., as claims that could have been, but were not, raised at trial and/or on appeal, respectively⁴:

"A.The prosecution's and the court's references to the jury's verdict at the penalty phase as an `advisory opinion' or `advisory verdict' violated petitioner's constitutional rights as stated in Caldwell v. Mississippi,[472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231(1985) ].

"B.Petitioner was deprived of a fair trial in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Constitution of Alabama by the prosecutor's use of peremptory challenges in a racially discriminatory manner.

". . . .

"E.At the penalty phase of the petitioner's trial, petitioner was denied his opportunity to present evidence of mitigating circumstances in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the state failed to provide him with the services of an independent and competent psychiatrist.

"F.The trial court's denial of the motion for continuance deprived the petitioner of his rights under the Sixth, Eighth and Fourteenth Amendments at the penalty phase.

"G.During the penalty phase, the trial court incorrectly shifted the burden of proof of mitigating circumstances and placed it on petitioner in violation of the Laws and Constitution of Alabama and the Eighth and Fourteenth Amendments to the United States Constitution.

". . . .

"M.The prosecutor's misconduct and arguments at the penalty phase of petitioner's trial were improper and deprived petitioner of a fundamentally fair hearing and due process in violation of petitioner's Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Constitution of Alabama.

"N.The prosecutor's misconduct and arguments at the guilt/innocence phase of petitioner's trial were improper and violated rights guaranteed to the petitioner by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Constitution of Alabama.

". . . .

"Q.Petitioner was deprived of an impartial jury through improper juror exclusion in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Constitution of Alabama.

"R.Petitioner was placed in a lineup in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the Constitution of Alabama.

"S.Petitioner was denied due process as guaranteed by the Laws and Constitution of Alabama and the Eighth and Fourteenth Amendments to the United States Constitution by the admission of evidence obtained in an unconstitutionally tainted lineup.

". . . .

"U.Petitioner was denied a fair trial by the court's failure to instruct the jury that the credibility and weight of the testimony of any witness is to be determined by the jury, and to correct the prosecutor's assertions concerning the credibility of the witnesses to the jury in its closing arguments.

"V.Alabama's death penalty was arbitrarily and discriminatorily applied in this case in violation of the Eighth and Fourteenth Amendments.

". . . .

"X.The court's failure to give a lesser included offense instruction resulted in an unconstitutional and illegal capital conviction and sentence of death.

"Y.The failure of the court to fully transcribe the trial court proceedings deprived petitioner of full appeal and statutorily mandated review of his capital sentence and conviction.

"Z.Alabama's sentencing statute which requires only ten affirmative votes for death and where the jury's verdict is `advisory' deprived the petitioner of the high degree of reliability required in death sentencing procedures under the Eighth and Fourteenth Amendments to the United States Constitution and the Constitution of Alabama.

"AA.The trial court erroneously placed the burden of persuasion on mental insanity on the defendant in violation of Alabama law and the Fifth and Fourteenth Amendments to the Constitution.

". . . .

"CC.Application of the death penalty and execution of mentally ill persons, such as petitioner, violates the United States Constitution and the State Constitution of Alabama.

". . . .

"EE.Petitioner was deprived of a fair trial in violation of the Fifth, Eighth and Fourteenth Amendments to the United States

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