State v. Gissendanner, CR-09-0998

CourtAlabama Court of Criminal Appeals
Writing for the CourtWELCH, Judge.
PartiesState of Alabama v. Emanuel Aaron Gissendanner, Jr.
Docket NumberCR-09-0998
Decision Date19 December 2014

State of Alabama
Emanuel Aaron Gissendanner, Jr.



OCTOBER TERM, 2014-2015
December 19, 2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Dale Circuit Court

WELCH, Judge.

The State of Alabama appeals the circuit court's ruling granting Emanuel Aaron Gissendanner's Rule 32, Ala. R. Crim. P., petition for postconviction relief and setting aside Gissendanner's capital-murder conviction and sentence of death.

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In 2003, Gissendanner was convicted of murdering Margaret Snellgrove during the course of a kidnapping and a robbery and of possessing or uttering a forged instrument.1 He was sentenced to death. Gissendanner's convictions and sentence of death were affirmed on direct appeal. Gissendanner v. State, 949 So. 2d 956 (Ala. Crim. App. 2006), cert. denied, 949 So. 2d 956 (Ala. 2006), cert. denied, 549 U.S. 1222 (2007). This Court issued the certificate of judgment for Gissendanner's direct appeal on August 25, 2006.

In August 2007, Gissendanner filed a timel y postconviction petition pursuant to Rule 32, Ala. R. Crim. P., attacking his conviction and sentence. He filed an amended petition in June 2009. In August 2009, the circuit court conducted an evidentiary hearing. On March 30, 2010, the circuit court, adopting a significant portion of Gissendanner's closing brief in support of relief, found that Gissendanner had been denied his constitutional right to the effective assistance of counsel, and it set aside his

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conviction and his sentence. The State appeals that ruling. See Rule 32.10(a), Ala. R. Crim. P.2

The circuit court set out the following facts surrounding Snellgrove's murder in its order sentencing Gissendanner to death:

"On Friday, June 22, 2001, [Gissendanner] intentionally caused the death of Margaret Snellgrove by inflicting severe head and neck injuries to her. The assault occurred at the victim's home. On Saturday, June 23, 2003, neighbors and relatives became concerned about the victim, as she could not be located. She had missed several appointments on June 22 and on June 23. She was last seen June 21, 2001. The police were contacted and examination of the victim's home revealed that she had been assaulted in her carport. Hair and blood, as well as the victim's broken glasses and an earring were discovered in the carport. The victim's car, a 1998 Oldsmobile Ninety-Eight, was missing. No one witnessed the assault and there is no evidence of an accomplice in the case. [Gissendanner] had been to the victim's residence previously. He helped witness Reverend David Brown with yard work at her house for about three hours in March or April 2001.

"A witness testified that she saw a black guy driving an automobile matching the description of the victim's car at approximately 6:30 a.m. on the morning of June 22. The location where the witness

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saw the automobile was in close proximity to the victim's home. The witness could not identify the driver as [Gissendanner], but her attention was drawn to the vehicle because her sister-in-law had an automobile that looked the same.

"On the morning of June 22, [Gissendanner], driving the victim's vehicle, picked up his best friend, Bernard Campbell, nicknamed 'Nobbie,' and they went to Clio. [Gissendanner] told Nobbie that the car belonged to one of his girlfriends. In Clio [Gissendanner], driving the victim's automobile, picked up three females who knew both [Gissendanner] and Nobbie, and they rode around, drank beer, and smoked weed. [Gissendanner] was wearing a brown pair of Dickey [brand] pants, a red shirt and a white tee shirt. [Gissendanner] told the females that he had bought the car from an 'old white woman.' They all noticed a Bible in the car. "Queen Esther Morris testified that she saw [Gissendanner] the morning of June 22 in the victim's car. [Gissendanner] told Morris that he was going fishing.

"Around 1:00 a.m. the morning of June 23 the victim's automobile was reported abandoned on property owned by Linda Russell. Upon checking the license plate it was confirmed to be the victim's missing automobile. [Gissendanner] testified that the automobile was rented to him by an individual named Buster he saw early Friday morning who was looking to buy some drugs. [Gissendanner] further testified that Buster gave him a check on the victim's account, asked him to cash it and said he would use the proceeds to buy drugs from [Gissendanner].

"Following the discovery of the victim's automobile, law enforcement began a search and investigation in the area for the victim's body. The car was examined and blood was discovered in the

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trunk of the car, on the underside of the trunk lid. The blood was later determined to be that of the victim.

"Investigators searched a nearby abandoned trailer in which [Gissendanner] sometimes stayed. In the trailer they found several items belonging to the victim including a cell phone, the victim's purse and some papers taken from the stolen vehicle. Investigators also found some of [Gissendanner's] clothing in the trailer which matched the description of the clothing [Gissendanner] was wearing on Friday morning during his trip to Clio. The victim's bloodstains were found on the clothing.

"On Saturday evening, June 23, [Gissendanner] paid his former wife $100.00 to drive him to Montgomery to visit his sister. She did so. [Gissendanner] was there in Montgomery when he was identified as a suspect, and he returned voluntarily to the Ozark Police Department, where he was questioned. He denied any involvement in the death of the victim, but admitted to driving her automobile and cashing the victim's check at the SouthTrust Bank in Ozark.

"The body of Margaret Snellgrove was found with the use of a cadaver dog on June 27, 2001, near the area where the automobile was found abandoned and near the trailer where [Gissendanner's] clothes and the victim's belongings were found. The body was found in a ditch covered with tree limbs. It appeared to have been there for several days and was badly decomposed. An autopsy determined that Margaret Snellgrove died of severe head and neck injuries. When the body was found she was in her panties with her shirt and brassiere pulled up under her arms. Her breasts were exposed."

(Trial C.R. 140-43; footnotes omitted.)

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Standard of Review

The State appeals the circuit court's order granting Gissendanner's Rule 32 petition. The circuit court specifically found that Gissendanner had been denied his constitutional right to the effective assistance of counsel at his capital-murder trial and sentencing hearing.

To prevail on a claim of ineffective assistance of counsel the petitioner must satisfy the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must show: (1) that counsel's performance was deficient; and (2) that the petitioner was prejudiced by the deficient performance. The Supreme Court in Strickland recognized that this test presents a mixed question of law and fact. 466 U.S. at 698.

"The standard of review the Court applies to each of these questions is that 'both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.' [Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052] at 2070 [(1984)]. Thus, we will not reverse the circuit court's findings of fact, that is, the underlying findings of what happened, unless they are clearly erroneous. ... The questions of whether counsel's behavior was deficient and whether it was prejudicial to the defendant are questions of law, and we do not give deference to the decision of the circuit court."

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State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711, 714-15 (1985).

"When we review a circuit court's resolution of a Strickland [v. Washington, 466 U.S. 668 (1984),] claim, as we do here, we apply a mixed standard of review because both the performance and the prejudice prongs of the Strickland test present mixed questions of law and fact." Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004). "A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court's factual findings unless clearly erroneous, but we independently apply the legal principles to the facts." Franks v. State, 278 Ga. 246, 250, 599 S.E.2d 134, 140 (2004). "On [an ineffective-assistance-of-counsel] claim we examine the record for supporting facts and apply those facts de novo to determine whether they demonstrate ineffective assistance of counsel." State v. Stephens, 46 Kan. App. 2d 853, 855, 265 P.3d 574, 576 (2011).

"Counsel's competence ... is presumed, ... and the defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not

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sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).

"We begin our analysis with a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that he made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). The presumption may be rebutted by evidence of counsel's reasoning or lack thereof. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the absence of evidence of counsel's reasons for the challenged conduct, the appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous

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