Lee v. State

244 So.3d 998

Jeffrey LEE

v.STATE of Alabama

CR–15–1415

Court of Criminal Appeals of Alabama.

February 10, 2017

Rehearing Denied April 21, 2017

Certiorari Denied August 25, 2017

Alabama Supreme Court 1160675

Bill Blanchard. Montgomery; and David Burman, Nicholas Gellert, and David A. Perez, Seattle, Washington, for appellant.

Luther Strange, atty. gen., and Lauren A. Simpson, asst. atty. gen., for appellee.

WINDOM, Presiding Judge.

Jeffrey Lee appeals from the circuit court's summary dismissal of his second postconviction petition filed pursuant to Rule 32, Ala. R. Crim. P., in which he challenged his three capital-murder convictions and sentences of death.

Lee was convicted of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson during the course of a robbery, see § 13A–5–40(a)(2), Ala. Code 1975, and one count of capital murder for killing two people, Ellis and Thompson, by one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(10), Ala. Code 1975. He was also convicted of attempted murder for shooting Helen King during the robbery. At the conclusion of the penalty-phase of the trial, the jury recommended, by a vote of 7 to 5, that the circuit court sentence Lee to life in prison without the possibility of parole. The circuit court considered but rejected the jury's recommendation and sentenced Lee to death.

On October 26, 2001, on direct appeal, this Court remanded Lee's case with instructions for the circuit court to amend its sentencing order.¹ Lee v. State, 898 So.2d 790 (Ala. Crim. App. 2001). While the cause was on remand to the circuit court, the Supreme Court of the United States issued its opinion in Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which applied its earlier decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to capital cases and held that defendants facing a sentence of death are "entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment," e.g., a jury finding regarding the existence of an aggravating circumstance. Thereafter, the circuit court filed its return to remand. At that point, this Court ordered "the parties to file supplemental briefs addressing the applicability of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to [Lee's] case." Lee, 898 So.2d at 858. After the parties filed their supplemental briefs, this Court affirmed Lee's capital-murder convictions and sentences of death. Regarding Ring, this Court held:

"In this case, the trial court found that one aggravating circumstance existed—the appellant committed the capital offenses while he was engaged in the commission of a robbery or an attempted robbery. See § 13A–5–49(4), Ala. Code 1975. Because the jury convicted [Lee] of the capital offense of robbery-murder, that statutory aggravating circumstance was proven beyond a reasonable doubt. Therefore, in this case, the jury, and not the judge, determined the existence of the ‘aggravating circumstance necessary for imposition of the death penalty.’ Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Furthermore, ‘ Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.’ Ex parte Waldrop, 859 So.2d 1181, 1190 (Ala. 2002). Therefore, there was not a Ring violation in this case."

Lee, 898 So.2d at 858. On February 6, 2004, the Alabama Supreme Court denied Lee's petition for a writ of certiorari. On October 12, 2004, the Supreme Court of the United States also denied Lee's petition for a writ of certiorari.

In 2005, Lee filed his first Rule 32 petition in which he argued, among numerous other things, that his death sentences were imposed in violation of the Supreme Court's decision in Ring. In April of that year, Lee filed an amended Rule 32 petition. In August of 2007, the circuit court issued an order summarily dismissing Lee's Rule 32 petition. On October 9, 2009, this Court affirmed the circuit court's summary dismissal of Lee's Rule 32 petition. Thereafter, on February 19, 2010, the Alabama Supreme Court denied Lee's petition for a writ of certiorari seeking review of this Court's affirmance.

According to Lee, on October 21, 2010, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the Federal District Court for the Southern District of Alabama. In his petition, Lee reasserted his Ring claim. On May 30, 2012, the district court denied Lee's petition. On August 1, 2013, the United States Court of Appeals for the Eleventh Circuit affirmed the district court's decision. The Supreme Court of the United States denied Lee's petition for a writ of certiorari.

On January 12, 2016, after the Supreme Court of the United States had denied Lee's petition for a writ of certiorari, it issued its decision in Hurst v. Florida, 577 U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). "[I]n Hurst [, the Court] applied its holding in Ring to Florida's capital-sentencing scheme and held that Florida's capital-sentencing scheme was unconstitutional because, under that scheme, the trial judge, not the jury, made the ‘findings necessary to impose the death penalty.’ " Ex parte Bohannon, 222 So. 3d 525, 531 (Ala. 2016) (quoting Hurst, 577 U.S. ––––, 136 S.Ct. at 622 ).

On April 28, 2016, Lee filed a second Rule 32 petition in the circuit court. In his petition, Lee argued that Alabama's capital-sentencing scheme is unconstitutional under Hurst. On June 16, 2016, the State filed a motion to dismiss Lee's petition. In its motion, the State argued that Lee's petition was procedurally barred under Rule 32.2(b), Ala. R. Crim. P., because it was successive, and under Rule 32.2(a)(4), Ala. Crim. App., because Lee's claim was raised and addressed on direct appeal. The State also argued that Hurst did not apply retroactively to a collateral challenge to a death sentence. Finally, the State argued that Lee's Hurst claim was facially without merit. On July 29, 2016, Lee filed an opposition to the State's motion to dismiss. On August 5, 2016, the circuit court granted the State's motion and dismissed Lee's petition. Lee appealed.

I.

On appeal, Lee first argues that the circuit court's order dismissing his Rule 32 petition did not reflect that court's independent judgment; therefore, the order must be reversed. Specifically, Lee argues that the circuit court adopted as its order a proposed order filed by the State. According to Lee, the order prepared by the State did not address all the arguments he had raised in his brief opposing dismissal. He also argues that the court's order incorrectly characterizes one of his arguments. Thus, Lee concludes the circuit court's order was not the product of the circuit court's independent judgment and must be reversed. This Court disagrees.

Recently, this Court explained:

" ‘Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous.’ McGahee v. State, 885 So.2d 191, 229–30 (Ala. Crim. App. 2003). ‘While the practice of adopting the state's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.’ Bell v. State, 593 So.2d 123, 126 (Ala. Crim. App. 1991). ‘[T]he general rule is that, where a trial court does in fact adopt the proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court.’ Ex parte Ingram, 51 So.3d 1119, 1122 (Ala. 2010). Only ‘when the record before this Court clearly establishes that the order signed by the trial court denying postconviction relief is not the product of the trial court's independent judgment’ will the circuit court's adoption of the State's proposed order be held erroneous. Ex parte Jenkins, 105 So.3d 1250, 1260 (Ala. 2012).

"For example, in Ex parte Ingram, supra, the circuit court adopted verbatim the State's proposed order summarily dismissing Robert Shawn Ingram's Rule 32 petition. In the order, the court stated that it had considered ‘ "the events within the personal knowledge of the Court" ’ and that it had ‘ "presided over Ingram's capital murder trial and personally observed the performance of both lawyers throughout Ingram's trial and sentencing." ’ Ex parte Ingram, 51 So.3d at 1123 (citation and emphasis omitted). However, the judge who had summarily dismissed the petition had not, in fact, presided over Ingram's trial and had no personal knowledge of the trial. The Alabama Supreme Court described these errors in the court's adopted order as ‘the most material and obvious of errors,’ 51 So.3d at 1123, and ‘patently erroneous,’ 51 So.3d at 1125, and concluded that the errors ‘undermine[d] any confidence that the trial court's findings of fact and conclusions of law [we]re the product of the trial judge's independent judgment.’ 51 So.2d at 1125.

"In Ex parte Scott, [Ms. 1091275, March 18, 2011] ––– So. 3d –––– (Ala. 2011), the circuit court adopted verbatim as its order the State's answer to Willie Earl Scott's Rule 32 petition. The Alabama Supreme Court stated:

" ‘[A]n answer, by its very nature, is adversarial and sets forth one party's position in the litigation. It makes no claim of being an impartial consideration of the facts and law; rather it is a work of advocacy that exhorts one party's perception of the law as it pertains to the relevant facts.’ "

"Ex parte Scott, ––– So. 3d at ––––. The Court then held that ‘[t]he trial court's verbatim adoption of the State's answer to Scott's Rule 32 petition as its order, by its nature, violates this Court's holding in Ex parte Ingram’ that the findings and conclusions in a court's order must be those of the court itself. Ex parte Scott

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