Ward v. State

• Decision Date: 14 August 2020
• Docket Number: CR-18-0316
• Parties: John Michael Ward v. State of Alabama
• Court: Alabama Court of Criminal Appeals

John Michael Ward v. State of Alabama

CR-18-0316

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2019-2020

August 14, 2020

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 Baldwin Circuit Court

(CC-97-799.60)

MINOR, Judge.

John Michael Ward, an inmate on death row, appeals the Baldwin Circuit Court's denial of his petition for postconviction relief under Rule 32, Ala. R. Crim. P. For the reasons below, we remand this case for the circuit court to make specific findings regarding allegations Ward raised in his petition.

Facts and Procedural History

A jury found Ward guilty in 1998 of capital murder for the 1997 killing of his four-month-old son, Nicholas Allen Ward. See § 13A-5-40(a)(15), Ala. Code 1975. The jury recommended, by a vote of 10-2, that Ward be sentenced to death. The trial court accepted that recommendation and sentenced Ward to death.

In Ward's direct appeal, this Court quoted the trial court's summary of the evidence in that court's order sentencing Ward to death:

"'On April 22, 1997, at 7:28 A.M. an operator at the Baldwin County 911 Center received a call from Michelle Milner Ward, who stated that her baby was not breathing. Ten minutes later paramedics arrived at the Wards['] residence, a 16' x 7' travel trailer. After receiving Nicholas Ward's body from John Michael Ward (hereinafter "Ward") the paramedics attempted resuscitation by intubation while en route to the South Baldwin Regional Medical Center. The emergency room attending physician, Dr. Robert Revel, examined the infant determining that he was not breathing, had no pulse, was cold to the touch and had rigor mortis. The doctor pronounced the child dead on arrival. In addition to the lack of vital signs, Dr. Revel observed abrasions on Nicholas's scalp, nose and mouth area, pus-like material in his eyes, blood in the ears, bruises on the neck and chest, stool in the diaper, a deformityon his right arm, and crusty material in some nail beds.

"'After the examination, Dr. Revel interviewed both parents. The father stated that Nicholas had been struck on the head by a folding chair falling from a shelf and that the baby had had breathing problems later in the day. The mother had wanted to seek medical attention, but that the father did not think it necessary.

"'Dr. Harold Reed, a pediatrician, answered the code call in the emergency room. He testified that he also examined the body and found the internal body temperature was 88 degrees.

"'Because foul play was suspected, hospital personnel contacted the Baldwin County Sheriff's office. Officer John Stewart arrived first and was followed by Chief Investigator Huey Mack, Jr. Officer Mack also observed abrasions on Nicholas's forehead, nose and mouth, bruises on the chest and arm, and missing toenails. He notified the Baldwin County coroner and the Department of Forensic Science of the unnatural death. Mr. Mack testified that the mother appeared to be upset during the administration of the last rites, but Ward was emotionless.

"'Investigator Mack left the hospital and met Chuck Machette, a caseworker with the Baldwin County Department of Human Resources at the Ward residence. The crime scene was photographed and videotaped. Ward and his wife participated in the taping. Mack took into his possession a blood-stained pillow from the bed where the parents said Nicholas had been sleeping the night before. Subsequent DNA testing revealed the blood belonged to Nicholas.

"'Dr. James Downs, the state medical examiner, performed the autopsy on Nicholas. He photographed and videotaped the body during the course of theautopsy. The pictures recorded the various injuries to the baby's body. From the autopsy procedure, Dr. Downs concluded that Nicholas had been an infant that failed to thrive. In addition, the child suffered multiple fractures to the arms and ribs and damage to the toenails and fingernails. He opined that Nicholas suffered a spiral fracture of the right arm the day before death. Dr. Downs determined the cause of death to be multiple blunt force injuries and suffocation.

"'Michelle Milner Ward testified that early in her relationship with Ward he placed his hand over her mouth and threatened to suffocate her. Ward continued to physically abuse his wife throughout the marriage.

"'Nicholas was born in December 1996, as the second child of her marriage to Ward. In January 1997, Mrs. Ward fled to her mother's home in Mobile, taking Nicholas and his sister, April. After remaining there one month, Mrs. Ward and the children moved to Penelope House, a Mobile County Shelter for battered women. After one month there, the mother and children returned to Ward's trailer in Magnolia Springs. Ward inflicted numerous injuries on his four month old son and murdered him by suffocation in the early morning hour of April 22, 1997.'"

Ward v. State, 814 So. 2d 899, 904-05 (Ala. Crim. App. 2000) (quoting Trial C. 5-7¹) ("Ward I").

In its order sentencing Ward to death, the trial court found that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. See § 13A-5-49(8), Ala. Code 1975. The trial court found no statutory mitigating circumstances to exist under § 13A-5-51, Ala. Code 1975. The trial court found one nonstatutory mitigating circumstance to exist: Ward had been abused as a child by his father. The court also noted that Ward had been diagnosed with Tourette's Syndrome. After weighing the aggravating circumstance and the mitigating circumstance, the trial court sentenced Ward to death.

On appeal, this Court affirmed Ward's conviction and death sentence. Ward I, 814 So. 2d 899, cert. denied, 814 So. 2d 925 (Ala. 2001), cert. denied, 535 U.S. 907 (2002). This Court issued a certificate of judgment, making Ward's conviction final, on September 7, 2001.

The procedural history of Ward's pursuit of postconviction relief is convoluted. Because his attorney disregarded Ward's instructions, Ward was unable to file a petition under Rule 32, Ala. R. Crim. P., until November2005.² The circuit court dismissed that petition as untimely filed, and this Court affirmed the judgment. Ward v. State (No. CR-05-0655), 988 So. 2d 1078 (Ala. Crim. App. 2006) (table) ("Ward II"). The Alabama Supreme Court reversed this Court's judgment, however, and held that the doctrine of equitable tolling may toll the limitations period under Rule 32.2(c), Ala. R. Crim. P., if the petitioner shows both "extraordinary circumstances that are beyond the petitioner's control and that are unavoidable even with the exercise of diligence." Ex parte Ward, 46 So. 3d 888, 897 (Ala. 2007) ("Ward III").

On remand from Ward III, this Court again affirmed the summary dismissal of Ward's petition. This Court held that, because he had not asked for it in his petition, Ward had no right to equitable tolling. Ward v. State (No. CR-05-0655), 14 So. 3d 196 (Ala. Crim. App. 2007) (table) ("Ward IV"). The Alabama Supreme Court reversed this Court's judgment, holding that, because Ward had not had the opportunity to ask forequitable tolling, he should be given a chance to do so. Ward v. State, 46 So. 3d 898 (Ala. 2010) ("Ward V").

On remand, the circuit court held an evidentiary hearing and found that Ward had no right to equitable tolling. This Court reversed the circuit court's judgment. Ward v. State, 228 So. 3d 490 (Ala. Crim. App. 2017) ("Ward VI"). This Court held that Ward had shown extraordinary circumstances because the attorney he had hired to file a Rule 32 petition had ignored Ward's instructions and had instead filed a habeas petition in federal court. 228 So. 3d at 501. Ward had also shown reasonable diligence in pursuing postconviction relief because he "repeatedly sought help in both state court and federal court." 228 So. 3d at 502-03.

On April 3, 2017, Ward filed an amended Rule 32 petition, his third such amendment.³ (C. 50.) In that petition, Ward alleged: (1) that newly discovered evidence showed that Nicholas died from pneumonia and thus that Ward is actually innocent; (2) that his trial counsel were ineffective in their investigation and preparation of his defense at the guiltphase, including a failure to hire certain experts such as a forensic pathologist, a pediatrician, and a mental-health expert; (3) that his trial counsel were ineffective for not challenging the sufficiency of the evidence corroborating the testimony of Michelle Milner Ward; (4) that his trial counsel were ineffective at the penalty phase; (5) that his appellate counsel was ineffective; and (6) that Alabama's death-penalty scheme is unconstitutional. The State answered the petition. (C. 542.)

The circuit court held an evidentiary hearing on September 26-27, 2017. Ward called the following witnesses: (1) Dr. Janice Ophoven, a forensic pathologist who opined that "Nicholas died of complications of pneumonia associated with failure to thrive, nutritional failure to thrive, associated with a history of aging chest fractures--rib fractures" (R. 42); (2) Robert Paul Cater, who served as Ward's trial counsel; (3) Spencer Davis, who also served as trial counsel; (4) Dr. Robert Shaffer, a psychologist; (5) Lisa Raley, a family friend; (6) Evelyn Breland, a former neighbor; and (7) Dr. Marti Loring, a social worker from Georgia. The State did not call any witnesses.

The circuit court held another hearing in November 2017 and at first instructed the parties to file proposed final orders in January 2018. Ward, however, asked for leave to file a fourth amended petition based on a December 7, 2007, memorandum prepared by Dr. Kenneth S. Snell, the then interim Chief State Medical Examiner at the ...