Wright v. State, CR-89-1448

• Decision Date: 23 August 1991
• Docket Number: CR-89-1448
• Citation: 593 So.2d 111
• Parties: Freddie Lee WRIGHT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 111

593 So.2d 111

Freddie Lee WRIGHT v. STATE.

CR-89-1448.

Court of Criminal Appeals of Alabama.

Aug. 23, 1991.

Rehearing Denied Oct. 11, 1991.

Certiorari Denied Jan. 31, 1992

Alabama Supreme Court 1910165.

Arthur J. Madden III, Mobile, for appellant.

James H. Evans, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.

PATTERSON, Presiding Judge.

The appellant, Freddie Lee Wright, appeals from the circuit court's order denying his petition for writ of error coram nobis. He filed this petition on June 22, 1987, seeking collateral relief from his convictions and sentence of death; an evidentiary hearing on the petition was held on February 26, 1988; and the trial court's order denying relief was filed on May 24, 1989. ¹ In denying the petition, the trial court issued a thorough opinion with detailed findings of fact. The appellant was initially represented in the coram nobis proceedings by the same counsel who represented him at his trial and on direct appeal; however, when it appeared during the coram nobis proceedings that questions would arise concerning the adequacy of trial and appellate counsel's representation, new counsel was appointed to represent the appellant.

In 1979, the appellant was convicted under the 1975 Death Penalty Act, Code of Alabama 1975, for the capital robbery of Warren Green (§ 13-11-2(a)(2)--robbery when the victim is intentionally killed) and for the capital murder of Warren and Lois Green (§ 13-11-2(a)(10)--first degree murder wherein two or more persons are intentionally killed), and he was sentenced to death. ² On direct appeal from these convictions and death sentence, we initially reversed and remanded on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). Wright v. State, 407 So.2d 565 (Ala.Cr.App.), cert. denied, 407 So.2d 565 (Ala.1981). Subsequently, the United States Supreme Court granted the state's petition for writ of certiorari, vacated the judgment of this court, and remanded the case to us for reconsideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Alabama v. Wright, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982). After this remand, we affirmed the appellant's convictions and sentence of death. Wright v. State, 494 So.2d 726 (Ala.Cr.App.1985). Thereafter, the Alabama Supreme Court affirmed the convictions and sentence, Ex parte Wright, 494 So.2d 745 (Ala.1986), and the United States Supreme Court denied the appellant's petition for writ of certiorari, Wright v. Alabama, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 183 (1987).

The evidence presented by the state at trial showed the following: The appellant, Percy Craig, Roger McQueen, and Reginal Tinsley, robbed the Western Auto Store in Mount Vernon. During the course of the robbery, the appellant and Tinsley forced Warren and Lois Green, the operators of the store, into a back room and tied them together with an electric extension cord. McQueen removed the money from the cash register at the appellant's instructions; the appellant took a television set and stereo system from the store; and Tinsley took several wristwatches. After removing Mr. Green's wristwatch from his arm, the appellant executed the Greens by shooting each of them one time in the head with a .38 caliber pistol. The appellant was the last to leave the store; upon entering the getaway car, he told his accomplices that he had shot the two people in the store; and he produced two spent cartridges, which were thrown from the vehicle. The robbers then drove to another location where they divided their loot. Subsequently a .38 caliber pistol was recovered from the premises where the appellant resided. According to a ballistics expert, it could have been the murder weapon. The appellant had been seen with the pistol prior to the murder.

McQueen and Craig testified for the state, giving details of the planning and execution of the robbery-murders and the division of the spoils. Both admitted participating in the robbery and testified that they intended to plead guilty. Both testified that the appellant, upon entering the automobile, stated that he had shot the Greens. Craig further testified that, after the commission of the crimes, he saw the appellant with Mr. Green's watch and that the appellant gave the watch to Joe Nathan Beckham, who pawned it. The watch was recovered from a pawnshop and was identified as Mr. Green's watch. Doris Lacey Lambert testified that, on the day after the robbery-murders, the appellant told her that he and his companions had gone to Mount Vernon and that he had killed two people in a Western Auto Store.

The appellant did not testify. He attempted to establish an alibi defense by the testimony of Carl Harrington to the effect that the appellant was with him at the Ebony Club in Mobile at the time of the robbery-murders. ³

On appeal, the appellant raises three issues in his brief. He claims that, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the state withheld exculpatory evidence indicating that a person named Theodore Otis Roberts was involved in the robbery-murders of the Greens for which he was convicted. He also claims that his trial counsel was constitutionally ineffective for failing to investigate Roberts's involvement in the robbery-murders; for failing to obtain a transcript of the appellant's first trial, which had resulted in a mistrial; for failing to raise the issue of whether the trial court erred in granting the state's motion in limine regarding the arrest, indictment, and incarceration of Roberts; and for failing to challenge the state's use of peremptory jury strikes in a discriminatory manner. He finally claims that the trial court, in the instant coram nobis proceedings, committed error in adopting the state's proposed findings of fact and conclusions of law.

The appellant has raised numerous issues in his petition for writ of error coram nobis that he has not addressed in his brief. The state urges us to address those issues in order to avoid possible successive petitions for collateral relief and to determine that they are procedurally barred from review. We will discuss these issues later in this opinion.

I.

The appellant contends that the state suppressed evidence that Mary Johnson was in the Western Auto Store shortly before the Greens were murdered, and that she identified Roberts as a person who entered the store at that time. In addition, he contends that the state suppressed evidence that a state firearms expert found that a pistol traced to Roberts was the murder weapon in the Green murders.

The record discloses that, shortly after the robbery-murders, and while the search for the culprits was underway, Mary Johnson reported to the police the following: shortly before the robbery-murders, she entered the Western Auto Store; as she entered, she observed a blue automobile with several persons in it in the vicinity of the store; when she entered the store, she was the only person beside the Greens in the store; she had a short visit with the Greens and, as she exited the store, she met a person entering; she did not know the person and had never seen him in Mount Vernon; as she left the store, she observed the same blue automobile parked nearby with three people in the back seat and one person in the front seat; they kept their faces turned away from her. The evidence further showed that when she learned of the murders a short time later, she came forward and gave the police a description of the person she had seen entering the store. She subsequently identified a photograph in a spread of photographs as the person she saw and later identified that person in a police lineup. The person she identified in both instances was Roberts. Roberts bears a striking resemblance to McQueen, and the automobile driven by Craig on the day of the robbery-murders was blue. A seized .38 caliber pistol was traced to Roberts and was identified, by a state's ballistics expert, as being consistent with the murder weapon.

Capital murder charges were filed against Roberts; he was arrested, and a preliminary hearing was held. Johnson as well as others testified at the hearing. The details of the crimes, the charges against Roberts, his arrest, the testimony of the witnesses at the preliminary hearing, including Johnson, and the report of the ballistics expert pertaining to the pistol traced to Roberts received broad coverage in area newspapers. Roberts was indicted.

In the meantime, the investigation continued and began to focus on the appellant, McQueen, Craig, and Tinsley. They were arrested. McQueen, Craig, and Tinsley confessed to their participation in the crimes, and all three named the appellant as the triggerman. None of the four ever implicated Roberts in any way.

The state ballistics expert, after examining a .38 caliber pistol which had been seized at the appellant's residence and traced to him, concluded that he could not make a positive identification of either pistol as being the murder weapon, but that either pistol could have been or was consistent with the murder weapon. The difficulty experienced by the ballistics expert in making a positive identification was because of the fragmented condition of the bullets recovered from the victims' bodies.

As the evidence mounted against the appellant, Craig, McQueen, and Tinsley, particularly with the confessions of the latter three naming the appellant as the triggerman, and no further evidence having been discovered linking Roberts with the crime, along with the uncertainty of the ballistics findings, the state concluded that there had been a misidentification by Johnson of Roberts, and it dropped the charges against Roberts. Craig, McQueen, and Tinsley were indicted for murder in the first degree, a non-capital offense, and the appellant was indicted for...