Musgrove v. State

Donnis George Musgrove

v.State of Alabama

CR-07-1528

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2012-2013

DATED: November 2, 2012

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 Jefferson Circuit Court

(CC-87-402.60)

JOINER, Judge.¹

Donnis George Musgrove, an inmate on death row at Holman Correctional Facility, appeals the Jefferson Circuit Court'sdenial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P.

In February 1988, Musgrove and Walter Rogers were convicted of intentional murder made capital because it was committed during a burglary, see § 13A-5-40(a)(4), Ala. Code 1975. At their request, Musgrove's and Rogers's cases were consolidated for trial. The jury, by a vote of 10 to 2, recommended that Musgrove and Rogers be sentenced to death. The circuit court followed the jury's recommendation and sentenced Musgrove and Rogers to death.

On direct appeal, this Court reversed Musgrove's and Rogers's convictions and death sentences. See Rogers v. State, 630 So. 2d 78 (Ala. Crim. App. 1991), rev'd 630 So. 2d 88. The Alabama Supreme Court, however, reversed this Court's judgment. Ex parte Rogers, 630 So. 2d 88 (Ala. 1992). On remand from the Alabama Supreme Court, this Court affirmed the convictions and sentences of death. Musgrove v. State, 638 So. 2d 1347 (Ala. Crim. App. 1993). The Alabama Supreme Court then affirmed. Ex parte Musgrove, 638 So. 2d 1360 (Ala. 1994), cert. denied, 513 U.S. 845 (1994). This Court issuedthe certificate of judgment, making Musgrove's direct appeal final, on March 24, 1994.

On November 17, 1995, Musgrove filed a petition for postconviction relief pursuant to Rule 32, Ala. R. Crim. P. (C. 189.) The State filed an answer to the petition on December 19, 1995. (C. 2.) On March 10, 1997, Musgrove filed his first amended Rule 32 petition. (C. 303.) The State, on March 5, 1999, filed an answer to the amended petition. (C. 428.)

On March 18, 2005, Musgrove filed his second amended Rule 32 petition. (C. 937.) On September 1, 2004, the State filed an answer and moved to dismiss Musgrove's second amended Rule 32 petition.² On May 8-10, 2006, an evidentiary hearing was held before Judge James Garrett, who had presided at Musgrove's trial. In a written order entered on April 15, 2008, Judge Garrett denied Musgrove's second amended Rule 32 petition. (C. 984.) Musgrove appealed to this Court. See Rule 32.10, Ala. R. Crim. P.

In the order denying Musgrove's second amended Rule 32 petition, Judge Garrett adopted the following findings from his original sentencing order:

"The victim in this case, Coy Eugene Barron, and his wife Libby Barron were asleep in their home in the community of Robinwood which is located on the outskirts of Birmingham in Jefferson County, during the early morning hours of Saturday, September 28, 1986. They were awakened as the front door of their home was apparently kicked in and as the door was being kicked in the victim and his wife were aroused from the bed, wherein the victim went to the bedroom door and tried to hold the door closed as one or more individuals were pushing on the bedroom door trying to gain entrance to the bedroom. The victim's wife was standing immediately behind him as he attempted to hold the bedroom door while she held their small baby who had been sleeping in their bed. The victim was advised by one of the individuals to get away from the door and not to run or he would shoot. Immediately thereafter entrance was gained to the bedroom by the individuals by forcing the door open, whereupon the victim ran to the other side of the room and picked up a bottle as if to throw at the two individuals who had broken into the bedroom. At that time two shots were fired, one by each of the individuals at the door, one of the two bullets striking the victim in the neck and thereby killing him. One of the individuals later determined to be the Defendant, David Walter Rogers, immediately left and ran out the front door the second individual later identified as the defendant, Donnis George Musgrove turned and pointed his pistol at the victim's wife who was still holding their small child. After a brief face to face encounter the defendant, Donnis George Musgrove turned and ran out the front door. This entire scenario was observed by another individual apparently unbeknownst to the two intruders, aseventeen year old boy named Jamie Crawford who had been staying with the victim and his wife for a couple of weeks prior to the incident. Immediately after the two defendants ran from the house the victim's wife and the young male, Jamie Crawford, ran from the house and saw a car speeding away from the scene.

"An investigation immediately ensued by the Jefferson County Sheriff's Department concerning the incident and in late November an Alabama State Trooper became involved in a high speed chase in Morgan County, Alabama, of a Chevrolet Camaro which later was determined to be stolen. This high speed chase extended for approximately twenty miles at speeds in excess of 120 mph. At the conclusion of the chase the stolen Chevrolet Camaro wrecked and the two individuals occupying the car fled from the scene and were later apprehended by a Cullman County Deputy Sheriff. On arrest of the two individuals it was determined later that their identity was Donnis George Musgrove and David Walter Rogers. These two individuals were subsequently placed in two separate lineups which were viewed by the victim's wife and she was able to identify each of the individuals as those individuals that came into her house that night and murdered her husband.

"It was further determined from the evidence that in July of 1986 the defendant, Donnis George Musgrove, was involved in an altercation in Tarrant City, Alabama, whereby he allegedly assaulted a man on Ketona Street and struck him in the side of the head with a pistol at which time the pistol discharged. The man was otherwise injured but was not injured as a result of the gunshot wound. He did however make a report to the Tarrant City Police Department of the incident and later investigation by the Jefferson County Sheriff's Detective in charge of the investigation of this case, made a search of the scene where the assault occurred and was able to locate a shell casing. This shellcasing was compared with a shell casing found next to the victim Coy Barron and a comparison was made by the Alabama Department of Forensic Sciences. It was determined by comparison that both shells had been fired from the same pistol thus placing one of the weapons that was fired in the home of the victim in the hands of Donnis George Musgrove in July of 1986.

"The defendant presented a case of alibi as a defense of the charges in the indictment. Several witnesses were presented who testified that the defendants were not in Birmingham at the time at which the murder occurred but were in Bradenton, Florida, visiting in the home of a Ms. Ollie Blunt and were there between the periods of August 28 and October 6, 1986. Documented evidence in the form of phone bills was presented to support the alibi of the defendant Donnis George Musgrove in his alibi defense, tending to show that he had made telephone calls from this address in Florida on the date of the offense. The alibi testimony by each of the codefendants was that they were in the company of each other during this entire term from August 28 until October 6, when they returned to the Birmingham area.

"The State on rebuttal presented evidence which showed that at the time of the arrest after the high speed chase in Morgan County, Alabama, that the codefendant, David Walter Rogers, had on his person identification belonging to Terry Dockery from Smyrna, Georgia, and that this identification was contained in an automobile stolen from his apartment on September 28, 1986, said date being within the time frame of the alibi previously presented by each of the codefendants."

(Trial C. 2805-2808; C. 38-41.³ )

Standard of Review

Musgrove appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P.--a proceeding Musgrove initiated to challenge his conviction and death sentence. Musgrove has the burden of pleading and proving his claims. Rule 32.3, Ala. R. Crim. P., provides:

"The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence."

"The standard of review this Court uses in evaluating the rulings made by the trial court [in a postconviction proceeding] is whether the trial court abused its discretion." Hunt v. State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005).

"We will reverse a circuit court's findings only if they are 'clearly erroneous.' Barbour v. State, 903 So. 2d 858, 861 (Ala. Crim. App. 2004).

"'"'[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948) .... If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

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