Thomas v. State

CourtAlabama Court of Criminal Appeals
Citation766 So.2d 860
PartiesKenneth Glenn THOMAS v. STATE.
Decision Date04 September 1998

766 So.2d 860

Kenneth Glenn THOMAS1


Court of Criminal Appeals of Alabama.

September 4, 1998.

Rehearing Denied October 23, 1998.

766 So.2d 870
William F. Burton, Washington, D.C.; Kevin M. Doyle, Birmingham, for appellant

Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

Kenneth Glenn Thomas appeals from the circuit court's denial of his Rule 32, Ala.R.Crim.P., petition, as amended,2 in which he contested the validity of his conviction for capital murder and sentence of death and also his convictions for first-degree arson, first-degree robbery, and first-degree sexual abuse, for which he received consecutive sentences of life imprisonment without the possibility of parole. Those convictions and sentences were affirmed by this court, see Thomas v. State, 539 So.2d 375 (Ala.Cr.App.1988); the Alabama Supreme Court affirmed this court's judgment, 539 So.2d 399 (Ala.1988). The United States Supreme Court denied Thomas's petition for certiorari review, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989). The circuit court denied Thomas's Rule 32 petition after holding an evidentiary hearing and issuing an "Opinion and Findings of Fact."3 Thomas did not testify at the Rule 32 proceedings.

The allegations asserted in Thomas's petition must be reviewed in the context of the evidence presented at trial. We quote, with several insertions, the rendition of the facts that appears in the opinion of this court on the direct appeal of Thomas's convictions and sentences, 539 So.2d at 377-80.

"Kenneth Glenn Thomas was charged in a four-count indictment with intentional murder [of 82-year-old Flossie McLemore] during the course of a burglary (in violation of § 13A-5-40(a)(4), Code of Alabama 1975), arson in the first degree (in violation of § 13A-7-41, Code of Alabama 1975), robbery in the first degree (in violation of § 13A-8-41, Code of Alabama 1975), and sexual abuse in the first degree (in violation of § 13A-6-66, Code of Alabama 1975). The jury found this appellant guilty on all four counts of the indictment and unanimously recommended death as punishment for the capital offense of burglary/murder. The trial judge sentenced the appellant to death for the capital offense and to life imprisonment without parole on the robbery, arson, and sexual abuse verdicts as judgments of conviction.
766 So.2d 871
"At approximately 2:00 a.m. on December 15, 1984, Veronica Grizzard was driving down East Street in Athens, Alabama, with two of her friends. As Grizzard passed the Athens Middle School, she noticed smoke coming from a house across the street from this school. Grizzard went to a neighboring house and awakened one Jerry Stephens. Stephen's wife telephoned the Athens Fire Department.
"Stephens then went to the burning house which was located at 521 East Street and threw rocks through the windows in an attempt to arouse the occupant of the house, Flossie McLemore. The front and back doors were too hot to open.
"At this time, the fire department arrived. The firemen began fighting the fire at the front of the house. After a few minutes, one of the firemen, Jerry Day, was able to enter the house. He found the body of Flossie McLemore lying on her back in the middle bedroom of the house.
"The victim was naked except that her green nightgown was pulled up around her chest. Her legs were spread in an unnatural position, with one leg in the hallway and the other around the corner of the door into the bedroom. The coroner was called to the scene and the house was secured.
"The firemen noticed the house was in shambles and they noticed blood all over the house. The kitchen stove and oven were on and the oven door was open. There were cloth items on the oven door and some burning paper inside the oven in a frying pan. However, the firemen stated that the oven was not the cause of the house fire. The living room was the most heavily damaged part of the house.
"Several Athens police officers came to the scene shortly after the firemen arrived. One of the officers noticed a red Chevrolet parked in the parking lot of the Athens Middle School.
"When the officers walked up to the car, one of them saw a man lying down on the front seat of the car. At this point, the man raised up and one of the officers recognized the man as this appellant. The appellant had blood all over his chest and pants [the pants were heavily saturated with wet blood and he was not wearing a shirt], and he smelled of alcohol.
"At this point, the appellant became belligerent and began cursing. He was asked to get out of the car and he was placed under arrest for public intoxication. One of the police officers `patted down' the appellant, and he found a rusty knife and some blood-soaked bills in the appellant's pants pocket.
"The appellant then jumped back in the car and locked the doors. The appellant was persuaded to exit the car and one of the policemen found a knife on the front seat of this car. The knife had some blood and hairs on it.
"The appellant kept insisting to the police officers that he hadn't done anything. He said that he had blood on him because he had been in a fight that night and had cut someone `real bad' at 31 Blue Spot in Ardmore, Tennessee.
"The appellant was then handcuffed and taken to the police station. It took several officers to put him in the police car.
"An autopsy was performed on the body of the victim by Dr. Joseph Embry. The autopsy revealed numerous wounds, bruises, and abrasions to the body of the victim. Embry found numerous post-mortem wounds to the victim's neck, chest, abdomen and pubic area.
"Embry also found the existence of several ante-mortem wounds. There was a deep tear in the back wall of the vagina which extended to the area between the vagina and the rectum. Embry found several other tears to the vagina and rectum and numerous cuts to the buttocks area. Embry stated that the wounds to the vagina and rectum were inflicted with a blunt instrument using considerable force and were indicative
766 So.2d 872
of sexual abuse. Embry also stated that some of the stab wounds and cuts were consistent with having been made by a knife. [The wounds were consistent with having been made by the knife seized from the driver's seat of Thomas's car].
"The victim also sustained several broken ribs. However, Embry stated that none of the above described injuries were life-threatening. Embry testified that the victim died as a result of asphyxiation caused by a hand or similar instrument applied with force. There were bruises and tears inside the mouth as well as marked hemorrhaging.
"After the appellant was placed in jail, his clothes were confiscated. There was blood all over his body, including his pubic area. The appellant had a cut to his hand between his third and fourth fingers.
"On the morning of December 15, 1984, officers from the Athens Police Department, along with John Kimbrough of the Department of Forensic Sciences, began collecting evidence. Spots of blood were found leading from the doorstep of the victim's house through the yard and across the street to the point where the appellant's car had been parked. A blood-soaked Kleenex was found in the street.
"The appellant and the victim both were type `O' in the ABO blood type system. However, in the PGM system, the appellant is `type one' and the victim was `type two one.'
"The spots of blood leading from the house to the appellant's car were consistent with the appellant's blood type as was the blood found on the Kleenex. A cloth found inside the appellant's car had bloodstains consistent with the appellant's and the victim's blood types.
"The officers found what appeared to be screwdriver marks on the window facing the front bedroom at the victim's house. There was blood on the inside wall of this window. In this bedroom, the mattress was shoved to the side of the bed and the contents of the dresser drawers were scattered on the floor. A pillowcase was found under some insulation on the floor. The pillowcase contained some money and jewelry and a car key. The key was to the ignition of the appellant's car. A bloodstained shirt was also found in this bedroom.
"A hair found on this shirt was consistent with the defendant's hair. The appellant was identified as having worn this shirt earlier on the night in question.
"The rest of the house was similarly in shambles. Every drawer, closet, and cabinet had been opened and the contents of each strewn about. Bloodstains were found all over the house, but only a few could be typed due to the heat from the fire. Two of the bloodstains were consistent with the appellant's blood type.
"A check with a bloody fingerprint on it was found in the storage room of the victim's house. It matched the known left thumbprint of this appellant.
"Two of the fibers from the knife found inside the appellant's car were similar to fibers from the victim's nightgown and a blanket on her bed. Hair fragments from the knife were consistent with the head and pubic hair of the victim. Trace fibers from the appellant's jeans were consistent with the victim's nightgown. A hair consistent with the victim's was also found on the appellant's jeans. [Fibers found on the soles of Thomas's shoes were similar to the fibers in the carpet in the victim's bedroom.]
"Brenda Presnell testified that she was following a red Chevrolet on the night of December 14, 1984, at approximately 11:45 on her way home from work. The car pulled into the parking lot of the Athens Middle School, and the person in the car had curly hair similar to the appellant's.
"Penny Corum stated that she was driving home on the night of December 14, 1984, near midnight. She stopped at
766 So.2d 873
the corner of East Street and Forrest Avenue and noticed a man crossing the street from the Athens Middle School parking lot. As she turned the corner, she saw the man in the victim's front yard. She

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