Davis v. State, No. CR-05-2050 (Ala. Crim. App. 8/7/2009)

Page 1

Melvin Davis v. State of Alabama.

No. CR-05-2050.

Court of Criminal Appeals of Alabama.

Decided August 7, 2009.

Appeal from Montgomery Circuit Court (CC-98-131.61)

WISE, Presiding Judge.

The appellant, Melvin Davis, appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. In 1998, Davis was convicted of capital murder for killing John Bradley and Timothy Ray during one act or pursuant to one course of conduct and during the course of a burglary, of the attempted murder of Eugene Smith, and of conspiracy to murder Charlie Boswell, Jr. He was sentenced to death. Davis's convictions and sentence were affirmed on direct appeal. See Davis v. State, 804 So. 2d 1153 (Ala. Crim. App. 2000). This Court issued the certificate of judgment on June 1, 2001.

In October 2002, Davis filed a petition for postconviction relief pursuant to Rule 32, Ala. R. Crim. P. That petition was dismissed by the circuit court. This Court affirmed the dismissal after finding that Davis had filed his postconviction petition after the limitations period set out in Rule 32.2(c), Ala. R. Crim. P., had expired.¹ See Davis v. State, 804 So. 2d 1153 (Ala. Crim. App. 2003). However, the Alabama Supreme Court reversed our decision and held that Davis's Rule 32 petition was timely filed based on the amendment to Rule 32.2(c), Ala. R. Crim. P. See Ex parte Davis, 890 So. 2d 199 (Ala. 2004). On remand from the Supreme Court, we remanded Davis's case to the circuit court for proceedings consistent with the Supreme Court's opinion. See Davis v. State, 890 So. 2d 200 (Ala. Crim. App. 2004).

In January 2006, the circuit court held an evidentiary hearing on Davis's Rule 32 petition. In June 2006, the court issued a 161-page order denying the petition. Davis then filed a timely notice of appeal to this Court.

The following facts are from the circuit court's order sentencing Davis to death, which we quote from our opinion on direct appeal:

"`Timothy Ray was twenty-seven years old at the time of his death. He was shot seven times, execution style, at point-blank range. John Bradley was sixty-seven years old at the time of his death and was shot three times, execution style, at point-blank range. Eugene Smith was fifty years old when he was shot execution style in the head. Miraculously, he survived and testified at trial. Charlie Boswell, Jr., was the target of the murders as he was the informant in a drug case that was pending against Davis and his brother, Princeton Davis. Boswell, Jr., was not at the home when the shootings occurred. The roots of this case stem from an earlier drug sale case against Davis. In 1995 and 1996, Davis sold marijuana, along with his brother Princeton Davis, from his family's apartment in Gibbs Village. The Montgomery Police Department learned of these drug sales and sent an informant, Charlie Boswell, Jr., to make controlled buys. Boswell made several buys from Princeton Davis and one buy from Davis. Based upon these buys, Davis and his brother were arrested and charged with distribution of marijuana. They were subsequently indicted on the offenses.

"`During the pendency of this case, Davis learned of the identity of the informant, Boswell, from his lawyer. Davis determined that the way to eliminate the case was to eliminate the informant. Approximately three weeks before the murders, Davis met with Marcus Dunn and codefendants, Derrick Singleton² and Antonio Jointer,³ at the house on Caffey Dr., where Davis had moved his drug operation. At this meeting Davis discussed several ways in which to silence the informant. It was decided that Boswell, Jr., would be killed. Boswell, Jr., lived, at times, with his father at 3325 Loveless Curve, which was around the corner from where Davis was selling drugs. Singleton scouted the house and on one occasion drove by it with Dunn to show him where the informant lived.

"`On Thanksgiving night, November 29, 1996, Davis met with Singleton and Jointer to go to the Top Flight Disco. The three drove to the club in Singleton's Chevrolet Nova. They stayed in the club until closing, which was approximately 2:00 a.m. They then left the club in the same automobile, with Davis driving, Jointer in the front passenger seat, and Singleton in the rear passenger seat. They traveled down High St. to Decatur St. and then turned right on Fairview Ave. Jointer believed that they were taking him to his home which was on Rosa Parks Ave. Instead, at the traffic light at Fairview and Interstate 65, Davis produced a .45 caliber pistol and Singleton produced a .38 caliber pistol stating, "It's time." Jointer knew that they meant it was time to kill the informant. Jointer was unarmed. Davis then drove to Caffey Dr. and then turned onto Loveless Curve, stopping down the street from the house. They then approached the house. Davis banged on the door at 3325 Loveless Curve until the home owner, Charlie Boswell, Sr., came to it. Davis then stated that he was there to see `Lewis.' Boswell replied that Lewis did not live there but, inquired if he meant `Eugene,' who was Eugene Smith, Mr. Boswell's close friend and roommate. Davis stated that he did, and Mr. Boswell let all three men inside the house. Present in the house with Mr. Boswell were Timothy Ray, who was asleep on a love seat by the front door in the living room, John Bradley, who was asleep on a couch in the living room, and Eugene Smith, who was in the bedroom at the back of the house. Davis and Singleton went to the door of Mr. Smith's bedroom and Davis asked, "Is that him?" Singleton replied in the affirmative. At trial, Mr. Smith positively identified Davis as one of the men standing at his door. At that point, as Mr. Smith described it, the other one walked to him, placed the gun to his ear and fired. Miraculously, he survived but was seriously wounded. Jointer, who was standing in the hallway, heard the shot and was numb with fear. Davis, Singleton, and Jointer then fled the house. As they were leaving, Davis and Singleton coldly and methodically pumped numerous rounds into Timothy Ray and John Bradley. Mr. Ray was shot seven times at point-blank range with a .45 caliber pistol and a.38 caliber pistol while Mr. Bradley was shot three times at point-blank range with .45 caliber and .38 caliber pistols. [Forty-five] caliber shell casings were found in Eugene Smith's bedroom and in the living room near the bodies of Mr. Smith and Mr. Ray. [Thirty-eight] caliber and .45 caliber slugs were also found in the house and were recovered from the bodies of the victims. Timothy Ray and John Bradley were shot for no reason except they were in the path of the defendants as they fled. Davis told Jointer that if he ever told anyone about the shootings, he would kill him.

"`After the shootings, Davis drove to the Waffle House [restaurant] on West South Blvd. with Singleton and Jointer where they met Davis's girlfriend, Kaneshia Taylor. Davis and Singleton sat with Taylor and ordered food while Jointer sat by himself at another booth.

"`For approximately one year this case went unsolved until Dunn, who was facing drug charges, came forward with the information concerning the conspiracy to kill Charlie Boswell, Jr., initiated by, and to the benefit of, Davis. This statement led the police to Jointer who gave a statement implicating Davis and Singleton in the shootings. Davis, upon being questioned by police, denied any involvement in the shootings but admitted to being with Jointer and Singleton that night.'"

804 So. 2d at 1155-56.

Standard of Review

This appeal is from the circuit court's denial of a postconviction petition filed pursuant to Rule 32, Ala. R. Crim. P. According to 32.3, Ala. R. Crim. P.: "The petitioner [has] the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief."

When reviewing a circuit court's denial of a Rule 32 petition we apply an abuse-of-discretion standard. Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992). "When conflicting evidence is presented, however, a presumption of correctness is applied to the court's factual determinations, and they will not be disturbed unless they are clearly erroneous." State v. Hamlet, 913 So. 2d 494, 497 (Ala. Crim. App. 2005).

Also, the plain-error standard of review does not apply in postconviction proceedings attacking a death-penalty conviction. Hill v. State, 695 So. 2d 1223 (Ala. Crim. App. 1997); Neelley v. State, 642 So. 2d 494 (Ala. Crim. App. 1993).

In regard to the burden of pleading, this Court in Boyd v. State, 913 So. 2d 1113 (Ala. Crim. App. 2003), stated:

"`Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.' Boyd v. State, 746 So. 2d 364, 406 (Ala.Crim.App. 1999). In other words, it is not the pleading of a conclusion `which, if true, entitle[s] the petitioner to relief.' Lancaster v. State, 638 So. 2d 1370, 1373 (Ala.Crim.App. 1993). It is the allegation of facts in pleading which, if true, entitles a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts."

913 So. 2d at 1125. In pleading claims of ineffective assistance of counsel, we have stated:

"To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must `identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' Strickland v. Washington, 466 U.S. 668, 690, but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' 466 U.S. at 694. A...