Wynn v. State, CR-19-0589

CourtAlabama Court of Criminal Appeals
Writing for the CourtKELLUM, Judge.
PartiesGregory Wynn v. State of Alabama
Decision Date28 May 2021
Docket NumberCR-19-0589

Gregory Wynn
v.
State of Alabama

CR-19-0589

Alabama Court of Criminal Appeals

OCTOBER TERM, 2020-2021
May 28, 2021


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 Calhoun Circuit Court
(CC-98-934.80)

KELLUM, Judge.

Gregory Wynn appeals his resentencing, pursuant to Miller v. Alabama, 567 U.S. 460 (2012), to life imprisonment without the possibility of parole for his capital-murder convictions.

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In 1999, Wynn was convicted of two counts of murder made capital because the murder was committed during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and two counts of murder made capital because the murder was committed during the course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975, in connection with the murder of Denise Bliss. The jury unanimously recommended that Wynn be sentenced to death for his capital-murder convictions, and the trial court followed the jury's recommendation and sentenced Wynn to death. This Court remanded the cause for the trial court to vacate one of Wynn's convictions for capital murder during a robbery and one of his convictions for capital murder during a burglary on the ground that those convictions violated double-jeopardy principles and to correct errors in its sentencing order. On return to remand, this Court affirmed Wynn's convictions on the other two counts of capital murder and his sentence of death. Wynn v. State, 804 So. 2d 1122 (Ala. Crim. App. 2000).1

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In 2003, Wynn filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief. In 2005, while the petition was pending in the circuit court, the United States Supreme Court issued its opinion in Roper v. Simmons, 543 U.S. 551 (2005), holding unconstitutional a sentence of death imposed on individuals who were under 18 years old at the time of the capital offense. The circuit court resentenced Wynn, who was 17 years old at the time of the murder, to life imprisonment without the possibility of parole, which, at the time, was the only sentence other than death available for his capital-murder convictions. In 2012, the United States Supreme Court issued its opinion in Miller, supra, holding unconstitutional a mandatory sentence of life imprisonment without the possibility of parole for individuals who were under 18 years old at the time of the capital offense. Wynn's Rule 32 petition was still pending in the circuit court when Miller was issued, and he amended his petition to challenge the constitutionality of his sentence of life imprisonment without the possibility of parole. In 2015, the circuit court denied Wynn's Rule 32 petition, and Wynn appealed.

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On appeal, this Court affirmed the circuit court's denial of the claims in Wynn's petition relating to the guilt phase of his capital trial, but we reversed the circuit court's denial of Wynn's challenge to his sentence of life imprisonment without the possibility of parole in light of the United States Supreme Court's opinion in Montgomery v. Louisiana, 577 U.S. 190 (2016), in which the Court held that the rule announced in Miller applied retroactively on collateral review, and we remanded the cause for the circuit court to vacate Wynn's sentence and to conduct a resentencing hearing. Wynn v. State, 246 So. 3d 163 (Ala. Crim. App. 2016). In doing so, we summarized the facts of the crime as follows:

"At Wynn's trial, the State's evidence showed that in the early morning hours of April 9, 1998, an employee of the Hardee's fast-food restaurant off McClellen Boulevard in Anniston opened the restaurant, discovered a pool of blood on the floor, and immediately telephoned police. Police discovered the body of Denise Bliss in the walk-in refrigerator. The forensic pathologist testified that Bliss had been severely beaten, that she had many defensive wounds, that 40 or more blows had been inflicted to her body, and that she died of multiple blunt-force trauma to her head and neck. Testimony established that Bliss had been beaten with a window washing device, commonly known as a squeegee, and a metal pipe that the restaurant used to compact its trash. Approximately $1,100 in currency, checks, and coins was missing from the restaurant.

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"The State's evidence presented against Wynn was compelling. There was testimony that Wynn had previously worked at Hardee's and that he had been fired by Bliss about two weeks before the murder. Two witnesses saw a black male very near Hardee's shortly before 10:00 p.m. on the night of the murder. At trial, one of those witnesses identified this male as Wynn. Randy Smith, a friend of Wynn's, testified that Wynn called him on the evening of April 8, 1998, and asked him for a ride to Hardee's because, he told Smith, he was going to rob the place and get some money. However, Smith said, he could not get his parents' car that evening.

"Seven people testified that Wynn confessed to them that he robbed and killed a woman at the Hardee's restaurant. Brandy Mancil testified that in April 1998 she was living in a trailer park, that she was at Brandy Yott's trailer on April 8, 1998, and that Wynn was with them. Mancil said that Wynn left the trailer at around 10:00 p.m. that evening on his bicycle but that he came back to the trailer later that night. Wynn wanted to talk to her, she said, and he told her that he had 'robbed Hardee's' and he showed her money that was in a 'blue like bank bag.' A little later, she said, he told her and Yott that he had killed a woman. Mancil testified to what Wynn told her:

" 'He said that he walked into Hardee's and that he was going to rob them but he changed his mind so he walked out. And then he got halfway towards like Fun Fever [an arcade] and he turned around and he said, "F— it," that he was going to go ahead and do it. And he went in and he hid behind the bathroom doors in the women's bathroom because I guess he knew they checked it before it closed. When the lady opened the door she didn't see him so I guess she went ahead and locked up.

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And he went in the back. And I can't remember, it was some kind of iron pole off of like a garbage disposal or something and he said that he had beat her with it. And then he -- he didn't -- he told her to give him all the money first and he said he wasn't going to kill her until she said, "Greg, please don't kill me. I won't call the police." And then after she said that he got scared and panicked I guess and just started beating her with that pole. And then he told me -- he said he didn't know if he had killed her or not. So if he didn't kill her he [dragged] her in the freezer and she would freeze to death before anyone found her the next day.'

"(Trial R. 1107-08.)

"Yott testified that in the early morning hours of April 9, 1998, Wynn came to the trailer where she was living to see her roommate Brandy Mancil. Yott said that she overheard Wynn tell Mancil that he had robbed somebody and 'wanted to know if we wanted to go get a room.' (Trial R. 1209.) Yott said that they went to a motel in Oxford, that Wynn paid for the room, and that Wynn gave her money to get beer. As Wynn was talking to them, she said, he told her and Mancil that he had 'killed a woman' at Hardee's and that he had beaten her with a 'stick or something.' (Trial R. 1213.) The next morning, she said, they walked over to a mall and Wynn paid for all the purchases that they made that day.

"Anthony Roper testified that he is a general manager for Hardee's. He testified that for each nightly deposit [the serial] number is recorded from the highest bill denomination that is deposited. The reason, he said, 'is in case the deposit gets lost or if it's stolen it [is] something the police could use to find it.' (Trial R. 832.) Reginald Elston testified that the day Wynn

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was arrested he was at Brandy's trailer with Wynn and Wynn asked him to give him change for a hundred dollar bill. That bill was traced to the daily deposit that had been prepared by Bliss on the night of the murder.

"A search was conducted of Wynn's house, which was approximately one mile from Hardee's. On April 11, 1998, police discovered torn checks made out to Hardee's and dated the day of the robbery/murder. Bloody clothing was also discovered at Wynn's house."

Wynn, 246 So. 3d at 167-68 (footnote omitted). In addition, we note that Cledus Ferrell and Carlos McCallum testified that, the day after the murder, Wynn had composed rap-music lyrics about the killing, and Ferrell testified that Wynn indicated he wanted to get a tattoo of a teardrop to show that he had killed someone. Wynn's defense at trial was that someone else had murdered Bliss, specifically two black males who had been seen entering the Hardee's restaurant just before it closed the night of the murder.

In February 2020, the circuit court conducted a resentencing hearing in compliance with this Court's instructions, at which the State and Wynn presented a plethora of documentary and testimonial evidence. Among other things introduced into evidence were the record from Wynn's trial

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and some of the exhibits from the trial; the record from Wynn's Rule 32 proceedings; Wynn's records from the Alabama Department of Corrections ("DOC"); Wynn's juvenile criminal records; Wynn's school records; and two reports prepared by experts. In addition, 12 witnesses testified at the hearing, and the State presented victim-impact statements from Bliss's mother and Bliss's best friend.

The State's evidence indicated that, in the six months before the murder, Wynn had been charged with multiple criminal offenses, including disorderly conduct, harassment, menacing, theft of property, burglary, and...

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