Wilkerson v. State

• Decision Date: 16 November 2018
• Docket Number: CR-17-0082
• Citation: 284 So.3d 937
• Parties: Nicholas WILKERSON v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

284 So.3d 937

Nicholas WILKERSON

v.STATE of Alabama

CR-17-0082

Court of Criminal Appeals of Alabama.

November 16, 2018

Rehearing Denied January 11, 2019

Certiorari Denied April 12, 2019

Alabama Supreme Court 1180332

J.D. Lloyd, Birmingham, for appellant.

Steve Marshall, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.

JOINER, Judge.

In 1992, when he was 17, Nicholas Wilkerson murdered William Wesson during the course of a robbery. In 1994, Wilkerson was convicted of capital murder, see § 13A-5-40(a)(2), Ala. Code 1975. Following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the circuit court sentenced Wilkerson to life imprisonment without the possibility of parole. We affirm.

Facts and Procedural History

Following Wilkerson's conviction for capital murder in 1994, see § 13A-5-40(a)(2), Ala. Code 1975,¹ the State and Wilkerson, with the approval of the circuit court, waived the right to a sentencing hearing before a jury, see § 13A-5-44(c), Ala. Code 1975, and the circuit court sentenced Wilkerson to life imprisonment without the possibility of parole.² This Court affirmed Wilkerson's conviction and sentence. See Wilkerson v. State, 686 So.2d 1266 (Ala. Crim. App. 1996).³ The Alabama Supreme Court denied Wilkerson's petition for certiorari on November 22, 1996.

On June 13, 2013, Wilkerson filed his first Rule 32, Ala. R. Crim. P., petition. Wilkerson alleged in that petition that, pursuant to the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), his life-imprisonment-without-parole sentence was "unconstitutional in violation of his rights protected by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law," and he argued that he was entitled to be resentenced. (C. 8.)

On July 9, 2013, the State filed a motion to dismiss Wilkerson's petition. The State argued that the Supreme Court's decision in Miller was not retroactive and that Wilkerson's claim could have been, but was not, raised at trial or on direct appeal, pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P.

In December 2014, the circuit court, pursuant to a joint motion, stayed the proceedings on Wilkerson's petition because the United States Supreme Court had granted certiorari in Toca v. Louisiana, 574 U.S. 1058, 135 S.Ct. 781, 190 L.Ed.2d 649 (2014), to consider whether Miller applied retroactively. The United States Supreme Court subsequently granted certiorari in Montgomery v. Louisiana, 577 U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), another case involving the same question.

In Montgomery, the United States Supreme Court held that its decision in Miller applied retroactively, and on February 1, 2016, the State and Wilkerson filed a joint motion notifying the circuit court of the decision in Montgomery. In light of the holding in Montgomery, both parties agreed that Wilkerson was entitled to the postconviction relief of a new sentencing hearing. On March 9, 2016, the circuit court granted Wilkerson's Rule 32 petition and scheduled a new sentencing hearing.

Before the sentencing hearing, the State filed a memorandum that included the following summary of the facts underlying Wilkerson's convictions:

"On May 15, 1992, Nicholas Wilkerson, along with four other individuals went to Bill's Farmhouse Restaurant. Three of these [individuals] including Nicholas Wilkerson put stocking masks on their heads, covering their faces, and armed themselves with loaded guns. The three individuals pushed through the back door of the restaurant passing two employees who were taking out the garbage. While cursing and yelling they forced an older woman to get on the floor. They placed a shotgun to her head. This woman was Maxine Wesson (known as Nanny). They then pushed an older gentleman to the floor. They sat on him and took his wallet. This older gentleman was William Wesson. Nicholas Wilkerson was the individual who sat on Mr. Wesson and removed his wallet.

"William Wesson's son, Billy Wesson, was the owner of Bill's Farmhouse. William Wesson's wife, Maxine Wesson, worked for their son at the restaurant. She usually worked every night until around eight p.m., which was the time the restaurant closed. On this night, Maxine Wesson volunteered to stay later because a coworker had called in sick. William Wesson stayed to wait on his wife as they had plans to go camping that night.

"On the Sunday before Friday, May 15, 1992, one of the busboys, Johnny Williams, quit his job at Bill's Farmhouse. Johnny Williams quit his job over a dispute with Billy Wesson. Johnny Williams had wanted to leave work early, but Billy Wesson would not allow him to leave before his shift ended. At that point, Johnny Williams quit. The other busboy employed at Bill's Farmhouse was Roy Williams. Roy Williams is Johnny Williams's cousin. When Johnny Williams quit, Tyrone Parker was hired to replace him as a busboy.

"On Friday, May 15, 1992, the two busboys on duty were Tyrone Parker and Roy Williams. Other people at the restaurant on May 15, 1992, at closing time were Maxine Wesson and William Wesson. Maxine Wesson was going about her usual tasks of closing the restaurant. The front door had been locked as it was past closing time. It was also time to take the garbage out. As Tyrone Parker and Roy Williams were dragging the garbage out the kitchen door, three young men with stockings over their heads, armed with guns, came in the door. Roy Williams and Tyrone Parker ran away from the restaurant and hid in some weeds. Roy Williams saw someone in a parked car in the back of the restaurant with a gun pointed at him as he ran off to hide. The investigation later determined the person in the car was Johnny Williams. The three young men were later identified as Dontrell Holley, Anthony Millhouse, and Nicholas Wilkerson.

"Inside the restaurant one of the gunmen pointed a gun at Maxine Wesson and told her to get on the floor. As Maxine Wesson was sitting on the floor a gunman held a gun and pointed the gun at her. Another gunman was beating the cash register. Maxine Wesson heard a lot of cursing and beating of the register. The third gunman, later identified as Nicholas Wilkerson, was in the area of the restaurant where William Wesson had been talking on the telephone. William Wesson was forced to lay on the ground by Wilkerson while Wilkerson sat on his back. While sitting on his back Wilkerson took William Wesson's wallet from his pocket. At this point William Wesson was shot in the back by Wilkerson. The bullet exited the right side of William Wesson's neck. Paramedics found the bullet as they rolled William Wesson over to try to save his life. The bullet chipped the linoleum floor below William Wesson. William Wesson died on the floor of Bill's Farmhouse.

"The three gunmen ran out of the restaurant with William Wesson's wallet and its contents as well as money from the cash register in a bank bag. Shortly after leaving the restaurant that night, Nicholas Wilkerson and the other four involved in the Robbery and Murder split the contents of William Wesson's wallet and the money bag.

"In the days that followed, Wilkerson gave three conflicting stories of the night's events to police. In the first statement he admitted to being present but stated that he never entered the restaurant. Less than three hours later he gave a second account. In this account he stated he did go in the restaurant but that someone named Andrew shot William Wesson while he was [lying] on the floor because he was white. In his third statement to the police Wilkerson stated that he was in fact the one who shot William Wesson but claimed it was accidental. He stated that the swinging door hit him causing him to shoot William Wesson.

"During the investigation officers with Hueytown Police Department were able to learn that Richard Flowers had rented his red Ford Mustang to Johnny Williams, Wilkerson, Dontrell Holley, Reginald Johnson and Anthony Millhouse. All of these Defendants were students at Ensley High School. Richard Flowers had rented his car to them the day of the Robbery and Murder for 50 dollars. They rented his car and left in it just before 8:00 p.m. At approximately 8:30 p.m. they returned in his car and Flowers watched as they split up a lot of money from a bank bag. Flowers also saw William Wesson's wallet in his car and a .25 caliber pistol that was not his. The Defendant, in his third statement, stated he used a nine millimeter to kill William Wesson. This weapon has never been found."

(C. 106-07.)

In its memorandum, the State urged the circuit court to impose on Wilkerson a sentence of life imprisonment without the possibility of parole. According to the State, Wilkerson was not entitled to receive a sentence allowing for parole because, the State said, Wilkerson could not establish "that his crimes were the result of the ‘ "transient immaturity of youth" ’ and not ‘ "irreparable corruption." ’ " (C. 108 (quoting Click v. State, 215 So.3d 1189, 1193, 1194 (Ala. Crim. App. 2016), quoting in turn Montgomery, 577 U.S. at 136 S.Ct. at 734 ).)

On August 15, 2017, the circuit court held a new sentencing hearing pursuant to Miller. The circuit court granted the State's motion to incorporate all testimony, exhibits, and other evidence submitted during the guilt phase of Wilkerson's trial. The State also presented testimony from three of Wesson's daughters regarding the impact Wesson's death had had on their family, and the State offered into evidence Wilkerson's disciplinary records from the Alabama Department of Corrections. Those records showed 65 alleged infractions including fighting, stealing, possessing weapons, possessing drugs (including cocaine) and alcohol, possessing cellular telephones, threatening to start a riot, and stabbing an inmate in the head and ear.

After the State rested, the circuit...