Whitson v. State

• Decision Date: 26 October 2012
• Docket Number: CR–11–0887.
• Citation: 109 So.3d 665
• Parties: Isaim Roshune WHITSON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

109 So.3d 665

Isaim Roshune WHITSON

v.STATE of Alabama.

CR–11–0887.

Court of Criminal Appeals of Alabama.

Aug. 24, 2012.

Rehearing Denied Oct. 26, 2012.

Isaim Roshune Whitson, pro se.

Luther Strange, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.

KELLUM, Judge.

Isaim Roshune Whitson appeals the circuit court's denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his 2009 convictions for three counts of capital murder and his resulting sentence of life imprisonment without the possibility of parole. This Court affirmed Whitson's convictions and sentence on appeal in an unpublished memorandum issued on August 13, 2010. Whitson v. State, (No. CR–08–1399) 84 So.3d 1016 (Ala.Crim.App.2010) (table).¹ The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on November 19, 2010.

Whitson's convictions arose from the shooting deaths of Brandon Bennett and Kendrick Elston while they were sitting in a vehicle in the parking lot of a nightclub called “Bootsie's.” Several eyewitnesses to the shooting testified for the State that Whitson was the shooter. Whitson's defense was that he did not commit the crimes. He attacked the State's evidence, questioned the credibility of the State's witnesses, and asserted that reasonable doubt existed as to his identity as the shooter.² He presented two witnesses on his behalf, also eyewitnesses to the shooting, neither of whom could identify the shooter, but both of whom contradicted some of the details of the shooting provided by the State's eyewitnesses. In our unpublished memorandum affirming Whitson's convictions and sentence, this Court set out the pertinent testimony at trial as follows:

“Lacorey Wilson testified that, during the evening of May 28, 2005, he was in a sport utility vehicle with [Whitson], Clevius Porter, and Dontarius Hammons; that they drove to a place known as Bootsie's; and that Elston was there. He also testified that, afterward, [Whitson] got out of the vehicle, and he heard gunshots. Finally, he testified that, when he got back into the vehicle, [Whitson] said, ‘My fault, cuz.’ (R. 370.)

“Latoya Embry testified that, during the late evening of May 28, 2005, or the early morning of May 29, 2005, she was with some friends and saw [Whitson] and his friends arrive at Bootsie's. She also testified that, at some point, she saw [Whitson] get out of the passenger side of a vehicle, run to the passenger side of the vehicle in which the victims were riding, and start shooting into the vehicle at the victims. Finally, she testified that [Whitson] then got back into the vehicle he had gotten out of and that the vehicle left.

“Labronze Curry testified that, while he was at Bootsie's on the evening of May 28, 2005, or the morning of May 29, 2005, he saw the victims together in a vehicle. He also testified that, at some point, [Whitson] started getting out of the vehicle in which he was riding; that he heard someone yell, ‘Kill the mother------’; and that [Whitson] walked around and shot into the vehicle in which the victims were sitting. (R. 472.) Curry further testified that [Whitson] got into a vehicle and left. He also admitted that he [Curry] was wearing a red hat at that time. Finally, he testified that he checked on the victims, that he got some rifles out of the trunk of his vehicle, and that he tried to run when law enforcement officers arrived.

“Terrance Tanner testified that he was an officer with the Talladega Police Department and that, around 2:00 a.m., he responded when the shots were fired at Bootsie's. He also testified that he observed the victims, that it appeared that they had been shot, and that he called for backup and the paramedics. Tanner further testified that he observed a handgun in the driver's seat while he helped remove Bennett from the vehicle. Finally, he testified that he saw a person who was carrying a rifle and walking away from the area.

“Timothy Boling testified that he was a paramedic and that he responded to the scene at Bootsie's. He also testified that the two victims had gunshot wounds and that Bennett was in the driver's seat and did not appear to be breathing. Finally, he testified that, when he and his partner removed Bennett from the vehicle, a gun fell out from behind his back.

“Captain Ronny Jones of the Talladega Police Department testified that he responded to the scene at Bootsie's at around 2:30 a.m. on May 29, 2005. He also testified that there was a rifle in the trunk, a handgun in the driver's seat, a red baseball cap in the console area, and shell casings and parts of shells within the vehicle in which the victims were sitting. Jones further testified that they collected a red baseball cap and twelve 9mm Winchester shells from the parking lot. Finally, he testified that [Whitson] was later apprehended in California.

“Santini Hunter, a friend of the victims, testified that he was with the victims at Bootsie's. He also testified that he was in the backseat of the vehicle and was bent down tying his shoe when shots were fired into the vehicle. Finally, he testified that Curry checked on the victims and then got a rifle out of the trunk of the vehicle.

“Sergeant Paul Zarris of the Los Angeles (California) County Sheriff's Department testified that, on October 12, 2005, he stopped a vehicle in which [Whitson] was a passenger. He also testified that [Whitson] initially identified himself as Billy Green at that time, but that he later gave them his real name. Afterward, he contacted law enforcement authorities in Alabama.

“Dr. Stephen Boudreaux, a pathologist with the Alabama Department of Forensic Sciences, performed autopsies on the victims. He testified that both victims sustained multiple gunshot wounds and that they died as a result of those wounds.

“Ed Moran, statewide firearms and toolmarks discipline chief for the Alabama Department of Forensic Sciences, testified that he examined defects in the vehicle the victims were in when they were shot. He also testified that he found seven holes and that, based on his examination, he concluded that the rounds were fired into the vehicle from outside of the vehicle. Finally, he testified that it appeared that the shooter was moving around the vehicle, rather than standing still, as he fired into the vehicle.

“Melvin Rogers, a Department of Corrections employee who was at Bootsie's at the time of the offense, testified for the defense. He also testified that it appeared that the driver got out of a sport utility vehicle, said something, and started shooting. Rogers further testified that he thought the shooter was in front of and on the passenger side of the vehicle the victims were in and that he thought the person shot into the passenger side of the vehicle. Finally, he testified that the person got back into his vehicle and left the scene.

“Howard Smoot testified that he was at Bootsie's with Rogers and two other people. He also testified that two guys got out of a sport utility vehicle and started shooting into the vehicle in which the victims were sitting. Finally, he testified that they shot into the sides and front of the vehicle.

“In rebuttal, Nicole Embry testified that she was at Bootsie's with her cousin, Latoya Embry, on May 29, 2005. She also testified that she saw [Whitson] get out of a sport utility vehicle with a gun and start shooting into the vehicle in which the victims were sitting. Afterward, he got back into the sport utility vehicle and left.”

Following his sentencing hearing on May 14, 2009, Whitson's trial counsel withdrew from representing him, and new counsel, Jonathon L. Adams, was appointed to represent Whitson on appeal. Adams filed a timely motion for a new trial alleging, among other things, that Whitson's trial counsel had been ineffective. After several continuances by agreement of the parties, the trial court held a hearing on the motion on January 28, 2010. Following the hearing, the trial court denied the motion. On appeal, this Court initially remanded the case by order for the trial court to make specific written findings of fact regarding each of Whitson's claims of ineffective assistance of trial counsel. The trial court complied with this Court's instructions and, as noted above, this Court then affirmed Whitson's convictions and sentence.

Whitson filed this, his first, Rule 32 petition on November 17, 2011. In his petition, Whitson alleged that his appellate counsel was ineffective for not raising in the motion for a new trial and then on appeal three additional claims of ineffective assistance of trial counsel. The State filed an answer and a motion to dismiss Whitson's petition on December 13, 2011, arguing that Whitson's claims were insufficiently pleaded and were meritless. The circuit court appointed counsel to represent Whitson and scheduled an evidentiary hearing for February 16, 2012. Following the hearing, the circuit court issued an order denying Whitson's petition, finding, among other things, that Whitson had failed to satisfy his burden of proof as to his claims and that his claims were meritless.³

On appeal, Whitson reasserts all three claims from his petition and argues that the circuit court abused its discretion in denying him relief.

“ ‘[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.’ Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992).”

Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003).

“The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the...