201 So. 3d 573
Ala. Crim. App.2015Background
- In 2005 Kerry M. Spencer was convicted of killing three Birmingham police officers and attempting to kill a fourth; the jury recommended life without parole but the trial judge overrode that recommendation and sentenced Spencer to death. Spencer’s convictions and sentences were affirmed on direct appeal (Spencer v. State).
- Spencer filed a timely Rule 32 postconviction petition (2011), amended it, and the Jefferson Circuit Court summarily dismissed the petition in July 2013; Spencer appealed that summary dismissal.
- The petition raised numerous claims, principally ineffective-assistance-of-counsel claims at pretrial, voir dire, guilt, and penalty phases; claims about the trial atmosphere (uniformed officers, spectator buttons), failure to secure/subpoena witnesses, failure to present intoxication/heat-of-passion defenses, inadequate mitigation investigation, and appellate counsel ineffectiveness; it also sought discovery and challenged procedural bars and Alabama’s lethal-injection protocol.
- The circuit court adopted much of the State’s proposed order with some additions and relied in part on the trial judge’s personal knowledge when denying an evidentiary hearing. Spencer argued that adoption of the State’s proposed order and the lack of an evidentiary hearing showed partiality or procedural error.
- The Court of Criminal Appeals reviewed pleading standards for Rule 32 petitions (full factual pleading required), reviewed the Ingram/Scott/Jenkins line on adoption of proposed orders, and affirmed the summary dismissal in all respects: it found Spencer’s claims either insufficiently pleaded, without merit, or procedurally barred, and found no reversible error in the court’s adoption of the State’s proposed order.
Issues
| Issue | Plaintiff's Argument (Spencer) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Trial court adopted State’s proposed order wholesale | Adoption denied Spencer notice/hearing; showed judge’s partiality | Court read and independently modified order; Spencer had notice and filed his own proposed order | No reversible error; order was product of judge’s independent judgment |
| Denial of discovery in Rule 32 proceeding | Spencer sought discovery to develop claims | Discovery requires good cause; petitioner may not "fish"; claims were meritless/procedurally barred | Discovery denial affirmed—claims lacked merit or were barred; no good cause shown |
| Uniformed police presence and spectator buttons (prejudicial atmosphere) | Presence created overwhelmingly prejudicial atmosphere; counsel ineffective for not objecting | Allegations were vague; no specifics on number/timing/impact; judge had personal knowledge there was not an overwhelming presence | Dismissed for insufficient pleading and lack of prejudice under Strickland/Carey/Woods analysis |
| Counsel’s voir dire performance (failure to follow up/remove biased jurors; shackling exposure) | Counsel failed to probe biased veniremembers and failed to prevent jurors seeing Spencer shackled | Record shows jurors either qualified or did not serve; court took precautions; petitioner failed to identify specific biased jurors or prejudice | Dismissed for insufficient specificity and lack of prejudice; no material factual issue |
| Failure to present intoxication or heat-of-passion defenses / subpoena Cooper | Counsel failed to investigate/present experts and key witness; would have supported lesser offenses | Spencer failed to plead quantity/effects of substances or imminence of provocation; Cooper was not eyewitness and would not establish provocation; record showed shootings inconsistent with those defenses | Dismissed—insufficient evidentiary foundation for those defenses; no prejudice shown |
| Penalty-phase mitigation investigation | Counsel failed to investigate and present mitigating evidence (PTSD, childhood brain injury, impoverishment) | Trial counsel presented mitigation, experts evaluated Spencer; additional evidence would not overcome aggravators; jury had recommended life | Dismissed—no reasonable probability omitted mitigation would change outcome; judge reweighed evidence and found no prejudice (Wiggins standard) |
| Sentencing issues: reliance on outside letters and victim-impact at judge hearing | Spencer asserts court considered materials he could not see and allowed impermissible victim-impact influence | Court explicitly stated it disregarded letters and did not rely on victim statements for judicial sentencing determination | Dismissed—record and sentencing order refute Spencer’s assertions |
| Procedural bars / ineffective appellate counsel re inconsistent theories | Spencer argued many claims were improperly found procedurally barred and appellate counsel failed to raise inconsistent-theory claim | State argued claims were raiseable earlier or were addressed on direct appeal; inconsistent-theory claim lacked merit and/or was unsupported by the trial record | Dismissed—claims were properly barred where previously raised or not preserved; appellate counsel not ineffective for not raising meritless or recordless issues |
Key Cases Cited
- Spencer v. State, 58 So.3d 215 (Ala. Crim. App. 2008) (direct appeal affirming convictions and addressing lesser-included and intoxication issues)
- Ex parte Ingram, 51 So.3d 1119 (Ala. 2010) (reversible error where trial court wholly adopted State’s proposed order with misstatements reflecting lack of independent judgment)
- Ex parte Jenkins, 105 So.3d 1250 (Ala. 2012) (clarifies Ingram—adoption of proposed order reversible only where record shows order is not product of judge’s independent judgment)
- Ex parte Beckworth, 190 So.3d 571 (Ala. 2013) (Rule 32 pleading and preclusion: petitioner should have opportunity to respond before summary dismissal on preclusion grounds)
- Ex parte Hodges, 147 So.3d 973 (Ala. 2011) (petitioner entitled to evidentiary hearing where state asserted preclusion but record lacks showing petitioner knew of claim earlier)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective-assistance two-prong test: deficient performance and prejudice)
- Holbrook v. Flynn, 475 U.S. 560 (U.S. 1986) (presence of a roomful of armed guards may raise fair-trial concerns)
- Carey v. Musladin, 549 U.S. 70 (U.S. 2006) (distinguishes state-sponsored practices from private spectator conduct)
- Wiggins v. Smith, 539 U.S. 510 (U.S. 2003) (prejudice in penalty-phase mitigation context assessed by reweighing aggravating and mitigating evidence)
- Pilley v. State, 930 So.2d 550 (Ala. Crim. App. 2005) (standards for when intoxication instruction is required)