Perkins v. State

144 So.3d 457

Roy Edward PERKINS

v.STATE of Alabama.

CR–08–1927.

Court of Criminal Appeals of Alabama.

Nov. 2, 2012.

Rehearing Denied April 26, 2013.

Certiorari Quashed Jan. 17, 2014

Alabama Supreme Court 1120894.

William Robert Montross, Jr., and Patrick Mulvaney, Atlanta, Georgia, for appellant.

Troy King and Luther Strange, attys. gen., and Henry M. Johnson, asst. atty. gen., for appellees.

WINDOM, Presiding Judge.

Roy Edward Perkins, a death-row inmate at Holman Penitentiary, appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his capital-murder conviction and sentence of death.

In 1994, Perkins was convicted of murdering Cathy Gilliam during the course of a kidnapping in the first degree, see§ 13A–5–40(a)(1), Ala.Code 1975. The jury recommended, by a vote of 10–2, that Perkins be sentenced to death. The circuit court followed the jury's recommendation and sentenced Perkins to death. On direct appeal, both this Court and the Alabama Supreme Court affirmed Perkins's conviction and sentence of death. See Perkins v. State, 808 So.2d 1041 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala.2001). The Supreme Court of the United States, however, remanded the cause to the Alabama Supreme Court in light of its holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that it is unconstitutional to sentence a mentally retarded individual to death. See Perkins v. Alabama, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). On remand from the Supreme Court of the United States, the Alabama Supreme Court found that the record did not show that Perkins met the most liberal definition of mental retardation and affirmed Perkins's death sentence. See Ex parte Perkins, 851 So.2d 453 (Ala.2002). Thereafter, the Supreme Court of the United States denied certiorari review. See Perkins v. Alabama, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 55 (2003). This Court issued the certificate of judgment on February 20, 2003.

In 2004, Perkins filed a 372–page Rule 32, Ala. R.Crim. P., petition in the Tuscaloosa Circuit Court attacking his conviction and sentence of death. Perkins filed amendments to specific issues in September 2004, May 2005, August 2007, and May 2009.

The reason for the delay in this case is that Perkins filed several extraordinary petitions while his postconviction petition was pending in the Tuscaloosa Circuit Court. In May 2005, Perkins moved for discovery, seeking access to his Department of Youth Services (“DYS”) and Department of Human Resources (“DHR”) records and to DHR records related to his mother, stepfather, and sister. The circuit court denied that motion. In Ex parte Perkins, 920 So.2d 599 (Ala.Crim.App.2005), this Court granted Perkins's petitionfor a writ of mandamus and directed the circuit court to grant him discovery of his own DYS and DHR records. In May 2006, this Court denied Perkins's second extraordinary petition requesting that this Court set aside the circuit court's order granting the State reciprocal discovery. See Ex parte Perkins, (CR–05–0148, May 31, 2006). In April 2008, the circuit court held an evidentiary hearing on Perkins's postconviction petition and on July 30, 2009, issued an order denying relief.¹ On August 17, 2009, Perkins moved the circuit court to rule on those claims not specifically addressed in its July 30 order. On September 3, 2009, the circuit court amended its original order denying Perkins's petition. Perkins appealed to this Court.

The circuit court set out the following facts in its order sentencing Perkins to death:

“On August 9, 1990, in north Tuscaloosa County, [Perkins] came to the residence of Cathy Gilliam, who was there alone except for her daughter. [Perkins], who was identified at trial, kidnapped the victim, Cathy Gilliam, with a handgun while victim's daughter watched. [Perkins] then drove away with the victim, and the daughter called for help.

“About an hour later, [Gilliam] showed up at Maudeen Hoods' residence, stating she'd been shot, was dying and needed help. Ms. Hood called the authorities. [State Trooper Eldon] Willingham got information on the suspect, his vehicle and direction of travel from [Gilliam]. He noted that [Gilliam] had been shot in the chest but not through the front of her shirt. The evidence was that [Gilliam] also did not have gunpowder stippling on her shirt. [Gilliam] was taken to a hospital but died before getting there. The bullet wound had an exit point just to the right of center on her back. [Gilliam] also had a stab wound near her clavicle and a broken bone in her neck.

“Chief Deputy Butch Hopson of Fayette, Alabama, on August 8, 1990, heard about a shooting or kidnapping by [Perkins] or someone fitting his description, over his radio. He was driving toward Tuscaloosa County and saw [Perkins], whom he recognized, coming toward him in a truck. He turned around and went after [Perkins], who drove to a road and abandoned the truck. The truck had been missing from its owner along with a long rifle and a .357 Magnum caliber handgun. The truck was abandoned less than a mile from [Perkins's] mother's house.

“[Perkins] was captured a few days later in the woods after a big manhunt. It was later learned that [Perkins] had gone to Darlene Hall's house, which was near [Gilliam's] house, just before going to [Gilliam's] house. Ms. Hall got suspicious of [Perkins], who asked to use her phone, and had seen his picture in the newspaper as a suspected rapist. She ran him off with an unloaded rifle. [Perkins] left in a truck.

“[Perkins] had been in prison for rape, second degree, and was out on parole. About August 1, 1990, he had asked his cousin, [B.P.], to help him. [Perkins] drove her to a block building near his mother's house. [Perkins] pulled a knife on her and forced her to have sexual intercourse with him. She was able to escape eventually. About August 6, 1990, [D.W.] was grabbed by [Perkins] and taken to the same block building at knifepoint and forced to have repetitive sexual intercourse and sodomy with [Perkins]. Her hands were tied during the sexual attacks.

“At trial, evidence proved beyond a reasonable doubt that [Perkins] kidnapped [Gilliam] with intent to violate her sexually or to inflict physical injury on her and that, during this kidnapping, [Perkins] intentionally caused [Gilliam's] death by shooting her with a gun, specifically a .357 magnum caliber handgun.”

(Trial record, p. 345–47.) ²

At trial, Perkins's counsel stipulated to the following:

“[Perkins] caused the death of Cathy Gilliam with a .357 Magnum pistol.... [Perkins] was in the 1979 Chevrolet gray pickup truck shown in State's exhibit number 23.... Cathy Gilliam's blood was found in the 1979 gray Chevrolet pickup truck shown in State's Exhibit number 23.”

(Trial record, p. 2087.)

Standard of Review

Perkins appeals the circuit court's denial of a postconviction petition he filed in the Tuscaloosa Circuit Court attacking his capital-murder conviction and sentence of death. According to Rule 32.3, Ala. R.Crim. P., “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.”

“Though we reviewed the claims on [Perkins's] direct appeal for plain error, the plain-error standard of review does not apply to a postconviction petition attacking a capital-murder conviction and death sentence. See Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008); Waldrop v. State, 987 So.2d 1186 (Ala.Crim.App.2007); Hall v. State, 979 So.2d 125 (Ala.Crim.App.2007); Gaddy v. State, 952 So.2d 1149 (Ala.Crim.App.2006). ‘In addition, “[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.” ’ Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995). When reviewing the circuit court's rulings on the claims raised in [Perkins's] postconviction petition, we apply an abuse-of-discretion standard. Gaddy, 952 So.2d at 1154.”

Ray v. State, 80 So.3d 965, 971 (Ala.Crim.App.2011).

With these principles in mind, this Court turns to the claims Perkins raises in his brief to this Court.

I.

Perkins first argues that the circuit court erred in denying his claim that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose a statement the victim's daughter made to a victims' services officer with the Tuscaloosa County District Attorney's Office.

At Perkins's trial, Candace Gilliam testified that on August 9, 1990, at around 4:00 p.m., she heard her mother scream. After this statement, Candace became very emotional and started crying. Perkins's counsel and the State stipulated to the following in lieu of Candace's continued testimony:

“When [Candace] heard her mother scream a second time, Candace went to the kitchen. There she saw a man holding her mother and pointing a black pistol at her mother's head. She heard her mother yell for help and say ‘something about a rapist.’ (R. 1755.) Candace watched as the man led her mother outside to a vehicle parked behind her mother's car. She could not see the vehicle well, but did notice that it was bigger than a car and that it was gray in color. At that point, Candace telephoned her grandmother. Candace was unable to give a detailed description of the man who had abducted her mother, but she did tell police that the man had brown, straight hair and a thin beard, and that he was not much taller than her mother.”

Perkins, 808 So.2d at 1053.

When denying relief on this claim, the circuit court stated:

“The evidence presented to this court established that, at the trial stage, [the] State represented to the Defense that it was following an ‘open file’ policy of permitting defense counsel to have access to all discovery information. Based on that understanding, trial counsel agreed to stipulate that ...