Ex Parte Pierce
HOOPER, Chief Justice.
The opinion of May 26, 2000, is withdrawn and the following is substituted therefor.
On January 26, 1989, Andy Dwight Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. His conviction was affirmed on appeal, but the Court of Criminal Appeals remanded the case for resentencing because improper information had been admitted during the sentencing phase of the trial. Pierce v. State, 576 So.2d 236 (Ala.Crim.App.1990). Pierce was resentenced to death, on April 15, 1991. On return to the remand, the Court of Criminal Appeals ordered a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory strikes to exclude blacks from the jury venire. Pierce v. State, 586 So.2d 1005 (Ala.Crim.App.1991). On return to the second remand, the Court of Criminal Appeals held that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced Pierce to death. Pierce v. State, 612 So.2d 514 (Ala.Crim. App.1992). This Court affirmed the conviction and the resentencing, Ex parte Pierce, 612 So.2d 516 (Ala.1992), and the United States Supreme Court denied certiorari review, Pierce v. Alabama, 510 U.S. 872, 114 S.Ct. 201, 126 L.Ed.2d 158 (1993). The Court of Criminal Appeals issued a certificate of judgment on February 3, 1993.
On December 2, 1994, Pierce filed a petition for postconviction relief pursuant to
This Court granted Pierce‘s petition for certiorari review, to examine one of Pierce‘s four claims—that Sheriff Douglas Whittle had been a key witness for the prosecution and that he had improperly had close and continual contact with the jury throughout the trial. The Court of Criminal Appeals held that this issue was procedurally barred by
I.
The United States Supreme Court in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), held that the defendant‘s right to a fair trial was violated by the fact that two deputy sheriffs who were key witnesses for the prosecution had charge of the jury during the defendant‘s three-day trial. The Supreme Court stated: “`In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.‘” 379 U.S. at 471-72, 85 S.Ct. 546 (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). In Turner, the jurors were sequestered during a three-day trial. The deputy sheriffs “drove the jurors to a restaurant for each meal, and to their lodgings each night [and] ate with them, conversed with them, and did errands for them.” 379 U.S. at 468, 85 S.Ct. 546. The Supreme Court held that this arrangement constituted a close and continual association between the deputy sheriffs and the jurors.
Pierce contends that his due-process rights, including his right to a fair trial, were violated because, he says, Sheriff Whittle, who Pierce claims was a material witness, had substantial association with the jurors during the trial. The Court of Criminal Appeals found that Pierce‘s claim was without merit because, it said 1) the facts did not support Pierce‘s claim that Sheriff Whittle had improper close and continual association with the jurors; 2) the record does not show that Sheriff Whittle was a key witness; and 3) Pierce presented no evidence indicating that he was actually prejudiced by any contacts between Sheriff Whittle and the jury. Judge Cobb wrote a concurring opinion in which she agreed with the State‘s argument that Pierce did not properly raise this issue at trial or on appeal; however, she disagreed with the rest of the main opinion.
The jurors in Pierce‘s case were sequestered during the trial, which lasted four days for the guilt phase and one day for the sentencing phase. The jurors stayed at the Comfort Inn motel in Enterprise, which is 20 miles from the Geneva County Courthouse. The jurors ate lunch in Geneva at the Chicken Box restaurant and ate breakfast and supper in Enterprise at the Shoney‘s restaurant. At the Rule 32 evidentiary hearing held by the trial court, more than six years after Pierce‘s trial, four witnesses testified as to the extent of Sheriff Whittle‘s contact with the jury. The Court of Criminal Appeals found that the testimony was conflicting and, thus, that the trial court‘s determination as to the credibility of the evidence must be given great deference. However, we do not find the testimony to be conflicting. We find undisputed evidence indicating
Dot Kirkland, the administrative assistant in the sheriff‘s office, was appointed as a bailiff and was responsible for the jury. Kirkland unequivocally testified that three vehicles were used to transport the jurors during the trial and that she drove her personal van while Sheriff Whittle and Chief Deputy Tice each drove a patrol car. Kirkland further testified that she, the deputy sheriff, and Sheriff Whittle accompanied the jurors to lunch.
Gerald Butler, the foreman of the jury, testified that officials of the Sheriff‘s Department transported the jurors by cars to their motel; however, Butler did not remember if Sheriff Whittle drove a car. Butler had previously executed an affidavit stating that Sheriff Whittle would “come up to Enterprise in the mornings to make sure everything went smoothly” and that “[t]he State provided everything we needed and the Deputies and Sheriff did a good job.” Robert Owens, a juror, testified that he did not remember Sheriff Whittle‘s driving a car to the motel in Enterprise, but remembered that Sheriff Whittle was sometimes with the jurors at lunch. Keith Brown, the third juror who testified about the jury‘s contact with Sheriff Whittle, testified that he remembered that Sheriff Whittle went back and forth to Enterprise with the jurors, and Brown thought that Sheriff Whittle drove one of the cars. Brown also said he remembered that Sheriff Whittle went with the jurors to eat lunch.
This testimony does not appear to be conflicting. Each of the witnesses, more than six years after the trial, remembered the sheriff‘s having contact with the jury. Kirkland, who was in charge of the jury and who would have the most knowledge of the lodging and meal accommodations for the jury, was clear in her testimony that Sheriff Whittle drove one of the cars used to transport the jurors to their motel in Enterprise and that Sheriff Whittle accompanied the jurors to lunch each day. The testimony of the three jurors who testified at the evidentiary hearing supports Kirkland‘s testimony, even if these three jurors did not ride in a car driven by Sheriff Whittle. The evidence shows that Sheriff Whittle drove jurors in a patrol car 20 miles each way, to and from their motel in Enterprise, each day during the five-day trial. The evidence also indicates that Sheriff Whittle ate lunch with the jurors each day.
The Court of Criminal Appeals states that all of the evidence indicates that Sheriff Whittle did not discuss the facts of the case with the jurors. However, Turner makes it clear that the question whether a witness had close and continual contact with the jury is not dependent upon whether the witness had conversations with the jurors regarding the case:
“It is true that at the time they testified in open court Rispone and Simmons [deputy sheriffs] told the trial judge that they had not talked to the jurors about the case itself. But there is nothing to show what the two deputies discussed in their conversations with the jurors thereafter. And even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.”
379 U.S. at 473, 85 S.Ct. 546.
In State v. Kelley, 192 W.Va. 124, 451 S.E.2d 425 (1994), the Supreme Court of Appeals of West Virginia held that there was “a reasonable probability that the violation in this case contributed to the conviction,”
Precedent from the Court of Criminal Appeals also supports our conclusion that Sheriff Whittle did have a constitutionally unacceptable level of contact with the jury in this case. In Yelton v. State, 50 Ala. App. 168, 170-71, 277 So.2d 912, 915 (Crim.App.1973), the Court of Criminal Appeals held:
“Even though the sheriff‘s participation in the instant case did not approach the prohibited [behavior] in Turner,... the error lies in allowing any association of the jury with a witness who has testified at the trial. It would undermine the basic guarantees of a jury trial to permit this kind of commingling, between jurors, and any other witness who was in a position of authority. A sheriff should not be placed in a situation where his integrity as a chief law enforcement officer of the county, and as an officer of the court, will be questioned. His testimony should come from the witness stand, unencumbered by any prejudicial suspicions which might occur when he is placed in the immediate presence of the jury.”
In Miles v. State, 261 Ala. 670, 75 So.2d 479 (1954), this Court held that a defendant was entitled to a new trial because the sheriff, a deputy sheriff, and a highway patrol officer had walked with the jury to a cafe, had eaten at the same table with the jury, and had walked back to the courthouse with the jury. The amount of contact between the law-enforcement officials and the jury in Miles is not nearly as great as that in the present case, yet this Court held that the possibility of influence exerted on the jury by those three men required a new trial. In Miles, this Court also stated that there was testimony indicating that the officers and the jury had not engaged in any conversation regarding the case; however, that fact was not dispositive.
We conclude that Pierce presented evidence indicating that Sheriff Whittle had a close and continual contact with the jury, and we conclude that that evidence was sufficient to show a violation of the principle of Turner v. Louisiana.
The Court of Criminal Appeals also held that the Turner principle did not apply because, it said, Pierce did not prove that Sheriff Whittle was a key witness in the case. That court based its conclusion on the proposition that Sheriff Whittle‘s testimony repeated the testimony of other witnesses and that, while Sheriff Whittle testified regarding a statement Pierce had made in the sheriff‘s presence, Pierce‘s own testimony at trial was consistent with his previous statements to the police and, thus, the sheriff‘s testimony was merely cumulative.
We conclude that Sheriff Whittle was in fact a key witness for the State. He was the investigating officer in charge of the case, and he testified as to what Pierce told him during an interrogation; his involvement was similar to the involvement of the sheriff in Yelton. In Yelton, the
“Although the sheriff‘s testimony was confined to the evidence found at the scene, his presence with the jury after the trial could have emphasized his testimony and the part he played in the trial.
“Any person holding the office of sheriff is not only recognized as the symbol of that county‘s law, but is the law to his constituents when he speaks. It is for this reason that the testimony of such an officer may influence a jury‘s verdict, and the impact of his presence is increased considerably whenever he is brought into such close company with the jurors.”
50 Ala.App. at 170, 277 So.2d at 914.
Sheriff Whittle‘s testimony was not merely cumulative. He recounted the interrogation of Pierce, which occurred in the sheriff‘s own living quarters at the jail. The sheriff testified about Pierce‘s story regarding a man Pierce said was named Jim, who, Pierce said, forced Pierce at gunpoint to take the victim‘s car and who, Pierce said, killed the victim. Pierce testified at trial to these same statements. However, Sheriff Whittle also testified that in his opinion Pierce was lying when he made those statements. Defense counsel tried to elicit from the sheriff testimony indicating that Pierce was cooperative while he was in custody, but the sheriff stated that Pierce was not cooperative during his interrogation because, the sheriff said, he refused to tell the truth. The sheriff‘s testimony as to Pierce‘s demeanor during his interrogation also implied that Pierce was lying. Sheriff Whittle further testified that Pierce was the “right man” to arrest for the murder.
This testimony was not cumulative as to that given by other witnesses, and it certainly qualifies as key testimony against Pierce. The prosecution‘s case was not overwhelming. No physical evidence at the scene connected Pierce to the murder. The police found no fingerprints or hairs belonging to Pierce in the victim‘s house. They also did not find any of the victim‘s blood, which had been splattered on the wall, on any of Pierce‘s clothing. Pierce‘s defense was that someone else committed the crime. The sheriff specifically stated that this defense was a lie. The sheriff‘s position as the county‘s head law-enforcement officer makes his testimony potentially more persuasive than that of other witnesses, particularly when he is also serving as the caretaker of the jury.
The Court of Criminal Appeals also found that Pierce had not shown that he suffered any actual injury by Sheriff Whittle‘s alleged improper contact with the jury. Three jurors testified that the sheriff‘s presence, actions, and conversations did not affect their deliberations. However, Pierce need not prove he suffered actual prejudice. As the United States Supreme Court stated in Turner v. Louisiana, 379 U.S. at 473, 85 S.Ct. 546, “it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and ... key witnesses for the prosecution.” The Court further stated:
“It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that [the witnesses] played as deputies made the association even more prejudicial. For the relationship was
one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial. And Turner‘s fate depended upon how much confidence the jury placed in these two witnesses.”
The Court of Criminal Appeals, in stating that Pierce must prove actual prejudice in order to be entitled to relief under Turner, relied on the dissent in Turner. However, based on the main opinion in Turner, we conclude that close and continual contact with the jury by a sheriff who is a key witness for the prosecution is necessarily prejudicial to the defendant. Thus, we conclude that the defendant does not have to show actual prejudice. This Court had written the following even before the United States Supreme Court decided Turner:
“`The association of this witness ... in control of the jury during the trial and its deliberations, furnished opportunity for ingratiating himself in the minds of the individual jurors, and for unduly emphasizing his testimony given in that case, causing it to affect and enter into the verdict rendered. His constant presence with the jury no doubt had bearing upon the case, though he and the jurors testified that he had not spoken to any individual juror about the evidence in the case or about the defendant. The injury which resulted was no doubt unconsciously brought about, but was none the less real or effective.‘”
Miles v. State, 261 Ala. at 672, 75 So.2d at 481 (quoting earlier cases). Our conclusion that Sheriff Whittle was a key witness who had improper close and continual contact with the jury is consistent with previous holdings of this Court, as well as holdings in other jurisdictions.
II.
The decisive issue in this case is whether Pierce‘s claim is procedurally barred under
Pierce‘s claim states a proper ground for relief under
“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
“(b) The court was without jurisdiction to render judgment or to impose sentence.
“(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.
“(d) Petitioner is being held in custody after petitioner‘s sentence has expired.
“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“(1) The facts relied upon were not known by petitioner or petitioner‘s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by
any of those times through the exercise of reasonable diligence; “(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received.
“(f) The petitioner failed to appeal within the prescribed time and that failure was without fault on petitioner‘s part.”
“(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
“(1) Which may still be raised on direct appeal under the Alabama Rules of Appellate Procedure or by post-trial motion under Rule 24; or
“(2) Which was raised or addressed at trial; or
“(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
“(4) Which was raised or addressed on appeal or in any previous collateral proceeding; or
“(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”
The Court of Criminal Appeals stated that Pierce had failed to prove that his evidence regarding the sheriff‘s improper contact with the jury constituted newly discovered evidence; therefore, it held, the trial court correctly held this claim to be procedurally barred on the basis that it could have been raised at trial or on direct appeal. The Court of Criminal Appeals held that Pierce did not satisfy the following three of the five elements required by
However, Pierce was not required to prove that this information meets the elements of “newly discovered material facts” under
Although
The Court of Criminal Appeals held that Pierce should have objected after hearing these statements. However, we do not think these comments were enough to put trial counsel on notice that the sheriff would personally be driving the jurors to their hotel and would be attending meals with them. Pursuant to
The State argues that in order for Pierce to prove that he could not have raised the issue at trial or on direct appeal (as required by
As previously stated, because Pierce‘s claim falls under
This case is in an unusual procedural posture. The record indicates that after Pierce filed his Rule 32 petition, the State filed an answer and a “Motion for Partial Dismissal.” Pierce‘s claim regarding improper juror contact with witnesses was encompassed in “Claim F” of the petition. In the “Motion for Partial Dismissal,” the State argued that Claim F, which the State described as “juror misconduct” and which encompassed other claims involving the jurors, was procedurally barred by
Pierce and the State entered into a stipulation of facts; that stipulation indicates that at the hearing on the “Motion for Partial Dismissal,” the State argued: “[C]ertain claims in the petition should be dismissed pursuant to the procedural bars found in
“1. Claim A, Claim B, Claim D, Claim H, Claim I and Claim J were raised or could have been raised at trial or on Motion for New Trial or on appeal. These claims are dismissed or procedurally barred pursuant to Rule 32.2(A) [sic] Alabama Rules of Criminal Procedure.”
“2. An evidentiary [hearing] will be held on the remaining claims.”
Pierce‘s claim of improper jury contact was one of the “remaining claims” the trial judge mentioned in paragraph 2 of his order. Thus, it appears from the record that the trial court considered arguments as to whether Pierce‘s claim regarding the sheriff‘s improper contact with the jury was procedurally barred by
The procedural posture of this case causes us to ask the following questions: Did the trial court address Pierce‘s procedural compliance with respect to this particular claim? If so, why did it not dismiss this claim along with the other claims? If the trial court did not address the procedural aspect, why would the trial judge hold a hearing on the substance of the claim, with witnesses being called, only to
When Pierce filed his Rule 32 petition, he was relying on the Court of Criminal Appeals’ opinion in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992), which held that a Rule 32 petitioner‘s claim alleging a juror‘s misconduct in failing to truthfully answer questions on voir dire examination was not procedurally barred by
Similarly, in Pierce‘s case, during postconviction investigation, Pierce‘s current counsel interviewed jurors and discovered the improper contact Sheriff Whittle had had with the jurors. Based on the Court of Criminal Appeals’ opinion in Freeman, Pierce‘s claim was cognizable as long as he established that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal. Pierce argued to the trial court, in his response to the State‘s contention that the issue was procedurally barred, that, on the authority of Freeman, the issue could not be barred, because the information was not available to trial counsel and could not have been obtained at the time of the trial. However, what is unclear from the record is whether Pierce met his burden under
For these reasons, we remand this case for the Court of Criminal Appeals to remand to the trial court for an evidentiary hearing on the question whether Pierce‘s claim could have been raised at trial or on appeal and is thus barred pursuant to
III.
Finally, Pierce argues, in the alternative, that his trial counsel was ineffective for not objecting to the sheriff‘s close and continual contact with the jury. From the record before us, it does not appear that Pierce‘s trial counsel had information from which he should have known the extent of the sheriff‘s contact with the jury. The simple fact that counsel knew that the Sheriff‘s Department was responsible, by statute and at the direction of the trial court, for “making arrangements” for the jury‘s needs does not mean that counsel should have known that the sheriff would be personally driving the jurors and accompanying them to lunch. However, the evidentiary hearing held on remand should indicate whether trial counsel knew or should have known about the sheriff‘s contact with the jury. Therefore, we do not foreclose the possibility that Pierce may have a cognizable claim for ineffective assistance of counsel.
APPLICATION GRANTED; OPINION OF MAY 26, 2000, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH INSTRUCTIONS.
HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur.
MADDOX, J., concurs in the result.
SEE, J., concurs in granting the application for rehearing; and concurs in part, concurs in the result in part, and dissents in part.
BROWN, J.,* recuses herself.
SEE, Justice (concurring in the order granting the application for rehearing; concurring in part; concurring in the result in part; and dissenting in part).
I concur in the order granting the application for rehearing. However, I disagree with the conclusion that “Sheriff Whittle was a key witness who had improper close and continual contact with the jury.” 851 So.2d at 612. Thus, I dissent from Part I. I concur in Part II., and I concur in the result to remand the case with instructions.