Wilkerson v. State

• Decision Date: 25 March 2011
• Docket Number: CR–08–1779.
• Citation: 70 So.3d 442
• Parties: Bruce Antonio WILKERSONv.STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

70 So.3d 442

Bruce Antonio WILKERSON

v.STATE of Alabama.

CR–08–1779.

Court of Criminal Appeals of Alabama.

March 25, 2011.

Stephen A. Strickland, Birmingham, for appellant.Troy King, atty. gen., and Robin Denise Scales, asst. atty. gen., for appellee.

On Return to Remand ^*

WELCH, Presiding Judge.

Bruce Antonio Wilkerson appeals the circuit court's denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, in which he attacked his 2004 conviction for murder made capital because it was committed during a robbery and his resulting sentence of life imprisonment without the possibility of parole. This Court affirmed Wilkerson's conviction and sentence in an unpublished memorandum issued on May 19, 2006. Wilkerson v. State (No. CR–04–0531), 978 So.2d 72 (Ala.Crim.App.2006) (table). The Alabama Supreme Court, after initially granting certiorari review, quashed the writ, and this Court issued a certificate of judgment on August 31, 2007.

Wilkerson filed his petition on June 16, 2008, raising numerous claims of ineffective assistance of counsel. On August 20, 2008, he filed an amendment to his petition raising an additional claim of ineffective assistance of counsel. After receiving a response from the State, accepting depositions, and conducting an evidentiary hearing, the circuit court denied Wilkerson's petition on July 20, 2009.¹ By order dated September 17, 2010, this Court found that the circuit court had erred in finding one of Wilkerson's claims of ineffective assistance of counsel to be barred by Rule 32.2(a)(3) and (a)(5) (see Part I.B. of this opinion), and we remanded this case for the circuit court to issue specific written findings of fact regarding that claim. The circuit court complied with our instructions and issued a supplemental order on September 29, 2010.

Wilkerson reasserts on appeal the majority of the claims of ineffective assistance of counsel raised in his petition. He also argues on appeal that the circuit court erred in finding some of his claims to be barred by various provisions in Rule 32.2(a) (Issue I in Wilkerson's brief) and requests that this Court remand this case for the circuit court to issue specific findings of fact regarding those claims (Issue II in Wilkerson's brief). We address these arguments in conjunction with the claims of ineffective assistance of counsel to which they apply.

For a better understanding of Wilkerson's ineffective-assistance-of-counsel claims, we note the following procedural history, gleaned both from the record from Wilkerson's direct appeal ² and from the Rule 32 proceedings.

On September 11, 2002, Wilkerson was arrested on an outstanding juvenile pick-up order and was questioned about the murder of Donald Williams that had occurred two days earlier, on September 9, 2002. Wilkerson, who was 17 years old at the time, invoked his juvenile Miranda ³ right to have his father, Johnny Wilkerson (hereinafter “Johnny”) present and, after Johnny arrived, Wilkerson gave a statement denying any participation in the murder. Johnny then invoked Wilkerson's right to counsel, questioning ceased, and on September 12, 2002, Johnny hired attorney Tom Radney to represent Wilkerson. Jason Jackson, a former police officer and a law student at the time who worked at Radney's law firm as a law clerk and investigator, met Johnny and obtained a retainer, and then met with Wilkerson at the juvenile-detention facility where he was being held.

The following morning, on September 13, 2002, a juvenile-detention hearing was held, at which Radney represented Wilkerson. After discussions with the prosecutor, Radney advised Wilkerson to cooperate with the police in the murder investigation. That afternoon, Wilkerson was again questioned by police, with Jackson present, and confessed to his participation in the murder. Radney continued representing Wilkerson for four months, during which time he was continually engaged in negotiations with the prosecutor regarding Wilkerson's case.

In January 2003, Johnny retained attorney Tim Davis, and Radney filed a motion to withdraw on January 23, 2003. A hearing was held on February 5, 2003, during which Davis filed his notice of appearance “for the limited purpose of representing [Wilkerson] in entering a guilty plea.” (Record on direct appeal, C. 19.) The trial court granted Radney's motion to withdraw on February 11, 2003. Plea negotiations apparently broke down, and in September 2003, at Davis's request, the trial court appointed Davis and attorney Charles Gillenwaters to represent Wilkerson. Davis and Gillenwaters represented Wilkerson through his November 2004 trial for capital murder and his sentencing hearing. On November 22, 2004, four days after Wilkerson was sentenced, Davis and Gillenwaters moved to withdraw. On December 27, 2004, after a hearing on December 16, 2004, at which Davis and Gillenwaters orally moved for a new trial, the trial court issued an order granting the motions to withdraw and denying the oral motion for a new trial. On December 29, 2004, the trial court appointed Jeremy Armstrong to represent Wilkerson on appeal. The record on appeal was certified as complete on March 3, 2005.

In our unpublished memorandum affirming Wilkerson's conviction and sentence, this Court set out the evidence at trial as follows:

“The State's evidence at trial tended to show that shortly after 10:00 p.m. on September 9, 2002, Rusty Dean heard a car at the Opelika Floral shop. He went outside and saw a beige or brown, older-model Chevrolet Caprice pull out, turn right, and stop. He then heard a gunshot and saw a black male run to the car and jump into the back passenger seat. The driver, a black male, drove away, and Dean called the police. A neighbor, Virginia Honnell, told investigating officers that she heard a ‘loud pop’ and voices a little after 10:00 p.m. She went outside and saw two young males dressed in dark shirts run to a parked, older-model car. The taller one got into the car, and the car began to pull away. The shorter one then got into the back of the car, and the car drove away. Honnell said that the shorter male appeared to be holding his mouth. Officers checked the neighborhood and found a man lying unconscious in the open doorway of a nearby residence. The man, Donald Williams, was pronounced dead by paramedics who reported to the scene. An autopsy subsequently revealed that Williams had died from a gunshot wound to the chest. Officers testified that the victim had two small cuts on his fingers and that two buttons appeared to be missing from his shirt. Officers found one plastic button on the front porch and another underneath Williams's body. A search of the residence revealed an overturned speaker inside the front door, a flower pot lying next to the speaker, and a bullet fragment on the den floor. Officers also found approximately $400.00 in cash in plain view in one of the rooms and approximately $600.00 in cash in the victim's pocket. Outside the house, they found a blood spot on the front steps and a spent shell casing on the ground to the right of the front door. DNA analysis revealed that the blood on the front porch was Wilkerson's. His blood also was found inside his car and on a white T-shirt in a garbage can at his home. Police also found a semi-automatic rifle and bullets at Wilkerson's house. Wilkerson was apprehended after police asked school officials to report any students who had suffered an injury. The principal reported Wilkerson because he missed school on September 9 and he had an injury to his mouth. Wilkerson's lip was stitched when he was apprehended.

“The State also offered evidence of an offense that had occurred in Auburn earlier the same evening. Marilyn Swyers testified that at about 9:30 p.m., two young black males opened the front door of her house and entered the living room. The shorter one did not say or do anything, but the taller one began waving a gun around and threatening to kill her husband, who was sleeping in a chair. When her husband awoke and began backing away, the gunman shot him in the chest. Both intruders fled; and the Swyerses' daughter, who had been in the bedroom, called the police. Mrs. Swyers identified Wilkerson in court as the shorter intruder, and she identified Lamar Charles Robinson from photographs as the taller intruder. She also identified a purple shirt found at Wilkerson's residence as similar to the one worn by the shorter intruder. Police subsequently interviewed Robinson at a correctional facility in North Carolina, and he denied participating in either crime. Before he could be returned to Alabama, Robinson hanged himself.

“On September 11, 2002, police picked up Wilkerson; and he gave them a statement. Wilkerson said that on September 9, he stayed home from school, sick. That night, he visited a friend, Lamarcus Harris. He fell as he was leaving Harris's residence shortly after 10:00 p.m. and cut his lip. The next morning, his mother took him to the doctor to have it stitched. Police subsequently discovered discrepancies in Wilkerson's statement. On September 13, they interviewed him a second time; and Wilkerson admitted that he had participated in both of the shootings on September 9. Wilkerson said that at about 4:30 p.m., he drove to the home of a friend, Laregis Ferrell, in his mother's car. He, Laregis, and a man named ‘Lamar’ went to visit a friend and then talked in Laregis's yard. Lamar said that he needed money, and the three of them agreed to commit a robbery. Wilkerson took his mother's car home and returned in his own brown, four-door 1977 Chevrolet Impala. The three of them then drove to Auburn, where Lamar selected a house to ‘rob.’ Wilkerson said that Lamar was armed with a rifle and some bullets, which he placed into the glove compartment. Lamar and Wilkerson approached the house, leaving Laregis in the car. They entered the house and found a woman sitting at a desk and a man sleeping in a...