Ray v. State Of Ala.

• Decision Date: 04 February 2011
• Docket Number: No. CR-06-2143,CR-06-2143
• Parties: Dominique Ray v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Dominique Ray v. State of Alabama

No. CR-06-2143

Court of Criminal Appeals of Alabama

OCTOBER TERM, 2010-2011

Date: February 04, 2011

Appeal from Dallas Circuit Court

(CC-97-375.60)

KELLUM, Judge.

The appellant, Dominique Ray, an inmate on death row at Holman Correctional Facility, appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P.

In 1999, Ray was convicted of murdering Tiffany Harville during the course of a rape and a robbery. See §13A-5-40(a)(2) and (a)(3), Ala. Code 1975. The jury, by a vote of 11-1, recommended that Ray be sentenced to death. The circuit court followed the jury's recommendation and sentenced Ray to death. Ray's conviction and sentence were affirmed on direct appeal.SeeRay v. State, 809 So. 2d 875 (Ala. Crim. App. 2001), cert, denied, 809 So. 2d 891 (Ala. 2001), cert, denied, 534 U.S. 1142 (2002).

In February 2003, Ray filed a Rule 32 petition in the Dallas Circuit Court. He filed an amended petition in November 2003. After an evidentiary hearing, the circuit court issued a 107-page order denying relief. This appeal followed.

In its sentencing order, the circuit court set out the following facts surrounding Tiffany Harville's murder, which we quoted in our opinion on direct appeal:

"'On or about August 16, 1995, Lawrence Milton was operating a tractor and bushhog just off County Road 62 in Dallas County, Alabama. As Mr. Milton went about his duties bushhogging the field, he discovered the skeletal remains of Tiffany Harville, who had been missing since on or about July 15, 1995.

'"Tiffany Harville was 15 years of age at the time of her death. Mary Coleman, Tiffany's mother, described the last time she [had] communicated with her daughter, Tiffany, in July 1995. Mrs. Coleman stated that she, Mrs. Coleman, was leaving town for the evening to attend a Union Workshop. She left Tiffany approximately $6 spending money. Upon Mrs. Coleman's return to Selma on Sunday afternoon, she discovered that her daughter had not been seen since 8:00 p.m. Saturday night. Mrs. Coleman described the efforts made to locate Tiffany, and further reported that the Defendant, Dominique Ray, came to her house to offer his assistance and share Mrs. Coleman's concern for her missing daughter. She testified that the Defendant offered to distribute fliers, and at one time, offered reward money to locate Tiffany. On two other occasions before Tiffany's body was discovered, the Defendant called Mrs. Coleman on the phone to make a general inquiry as to Mrs. Coleman's condition.

"'The investigation into the death of Tiffany Harville continued for several months. There were numerous leads and suspects, and at one time an individual was arrested and held without bond for the murder of Tiffany Harville. Finally, the codefendant in this case, Marcus D. Owden, came forward and gave the police a full accounting of the events and circumstances surrounding the death of Tiffany Harville. Owden testified at [t]rial against the Defendant Ray that it was their intent to form a mob or a gang, and that they had intended to find Tiffany Harville for the purpose of having sex with her. Owden stated that he did not know Tiffany, but that Ray did and that it was Ray's idea to go and get Tiffany. Owden testified that they had talked about having sex with her before they went to her house to get her. On the evening of July 15, 1995, Owden and Ray picked Tiffany up and proceeded to take her to [the] Sardis community located in Dallas Countv Alabama on or near Hiahwav 41 Owden stated that they had decided they were going to ask her forsex first, and if that didn't work, that they would take it. He described during his testimony how he and the Defendant Ray [had] had sex with her and how she [had] pleaded for help.

"'Owden testified that Ray cut her throat and that he, Owden, cut her as well. He then described that they took part of her clothing along with her purse, which contained $6 or $7.

"'In addition to the testimony of Marcus D. Owden, the State offered into evidence the statement of the Defendant, Dominique Ray. In his statement, he admits to his role in the rape and murder of Tiffany Harville, yet attempts to establish Owden as the primary perpetrator.

"'Dr. [James] Lauridson, the State Medical Examiner with the Alabama Department of Forensic Sciences, described 12 defects in the skull which were consistent with stab-like defects. He [wa]s unable to testify with regard to soft tissue wounds, due to the decomposition of the body.'"

Ray, 809 So. 2d at 879-80.

Standard of Review

Ray appeals the denial of a postconviction petition he filed attacking his capital-murder conviction and death sentence. According to Rule 32.3, Ala. R. Crim. P., Ray has the sole burden of pleading and proof. Rule 32.3, Ala. R. Crim. P., provides:

"The petitioner shall have the burden of pleading and proving by a preponderance ofthe evidence the facts necessary to entitle the petitioner to relief. The state shall have theburden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence."

(Emphasis added.) "Preponderance of the evidence" is defined as:

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

Black's Law Dictionary 1220 (8th ed. 2004).

Though we reviewed the claims on Ray's direct appeal for plain error, the plain-error standard of review does not apply to a postconviction petition attacking a capital-murder conviction and death sentence. See Ferguson v. State, 13 So. 3d 418, 424 (Ala. Crim. App. 2008); Waldrop v. State, 987 So. 2d 1186 (Ala. Crim. App. 2007); Hall v. State, 979 So. 2d 125 (Ala. Crim. App. 2007); Gaddy v. State, 952 So. 2d 1149 (Ala. Crim. App. 2006). "In addition, '[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.'" Brownless v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995). When reviewing the circuit court's rulings on the claims raised in Ray's postconviction petition, we apply an abuse-of-discretion standard. Gaddy, 952 So. 2d at 1154.

I

Ray first argues that the circuit court erred in adopting the State's proposed order denying his Rule 32 petition. Ray argues in brief: "Though debatably permissible in some circumstances, here, in the face of so many concerns, and where the stakes are so high, justice demands more than rubber-stamping the State's proposed order." (Ray's brief, at p. 22.)

"While the practice of adopting the state's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985);Hubbard v. State, 584 So. 2d 895 (Ala. Cr. App. 1991); Weeks v. State, 568 So. 2d 864 (Ala. Cr. App. 1989), cert, denied, , 111 S.Ct. 230, 112 L.Ed.2d 184 (1990);Morrison v. State, 551 So. 2d 435 (Ala. Cr. App.), cert, denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990)."

Bell v. State, 593 So. 2d 123, 126 (Ala. Crim. App. 1991). SeealsoDobyne v. State, 805 So. 2d 733, 741 (Ala. Crim. App. 2000); Jones v. State, 753 So. 2d 1174, 1180 (Ala. Crim. App. 1999).

More recently in Hyde v. State, 950 So. 2d 344 (Ala. Crim. App. 2006), we stated:

"[T]his Court has repeatedly upheld the practice of adopting the State's proposed order when denying a Rule 32 petition for postconviction relief. See, e.g., Coral v. State, 900 So.2d 1274, 1288 (Ala. Crim. App. 2004), overruled on other grounds, Ex parte Jenkins, 972 So. 2d 159 (Ala. 2005), and the cases cited therein. 'Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous.' McGahee v. State, 885 So. 2d 191, 229-30 (Ala. Crim. App. 2003)."

950 So. 2d at 371.

However, the Alabama Supreme Court has admonished that "appellate courts must be careful to evaluate a claim that a prepared order drafted by the prevailing party and adopted by the trial court verbatim does not reflect the independent and impartial findings and conclusions of the trial court." Ex parte Ingram, [Ms. 1060413, March 19, 2010] __ ___So. 3d __, ____ (Ala. 2010).

In Ingram, the Supreme Court held that the circuit court's adoption of the State's proposed order denying postconviction relief was erroneous because, it said, the order stated that it was based in part on the personalknowledge and observations of the trial judge when the judge who actually signed the order denying the postconviction petition was not the same judge who had presided over Ingram's capital-murder trial. "[T]he patently erroneous nature of the statements regarding the trial judge's 'personal knowledge' and observations of Ingram's capital-murder trial undermines any confidence that the trial judge's findings of fact and conclusions of law are the product of the trial judge's independent judgment ____" Ingram, __ So. 3d at __. Our first opportunity to consider this issue after the Supreme Court's decision in Ingram came in James v. State, [Ms. CR-04-0395, June 25, 2010]__So. 3d__(Ala. Crim. App. 2006) (opinion on application for rehearing). We upheld a circuit court's order, adopted verbatim from the State's proposed order, over a claim that in adopting the State's order the circuit court had violated Ingram and the United States Supreme Court's...