State v. Petric

333 So.3d 1063

STATE of Alabama

v.Steven PETRIC

CR-17-0505

Court of Criminal Appeals of Alabama.

August 14, 2020

Rehearing Denied October 9, 2020

Certiorari Denied February 19, 2021

Alabama Supreme Court 1200042

Steve Marshall, atty. gen., and Audrey Jordan, asst. atty. gen., for appellant.

R. Ashby Pate of Lightfoot, Franklin & White, LLC, Birmingham; and Bryan C. Mulder, Teresa Lynn Reuter, Jacqueline Pruitt, Leif E. Peterson II, Brian W. Tobin, and Marisa Young (withdrew 03/12/2020) of Sidley Austin LLP, Chicago, Illinois, for appellee.

KELLUM, Judge.

The State of Alabama appeals the circuit court's order granting Steven Petric's petition for postconviction relief and setting aside Petric's capital-murder conviction and sentence of death.

In 2009, Petric was convicted of murdering Toni Lim during the course of a rape in the first degree, an offense defined as capital by § 13A-5-40(a)(3), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended that Petric be sentenced to death. The circuit court sentenced Petric to death. On direct appeal, this Court affirmed Petric's capital-murder conviction and death sentence. See Petric v. State, 157 So. 3d 176 (Ala. Crim. App. 2013). The Alabama Supreme Court and the United States Supreme Court denied certiorari review. See Petric v. Alabama, 574 U.S. 1030, 135 S.Ct. 711, 190 L.Ed.2d 446 (2014), and Petric v. State (no. 1121404, May 23, 2014). This Court issued the certificate of judgment on May 23, 2014. See Rule 41(a)(1), Ala. R. App. P.

In May 2015, Petric filed a petition for postconviction relief pursuant to Rule 32, Ala. R. Crim. P., attacking his capital-murder conviction and death sentence.¹ Petric filed an amended petition in May 2016. An evidentiary hearing was held. In February 2018, the circuit court issued an 118-page order granting Petric's petition after finding that Petric had been deprived of the effective assistance of counsel. The court ordered that Petric be given a new trial.² The State then filed a timely notice of appeal to this Court.

On direct appeal, this Court stated the following concerning the facts surrounding the murder of Toni Lim:

"On March 9, 1990, the victim, Toni Lim, was found dead on her bed in the apartment she shared with Martha Milinda Higginbotham. The apartment was located in Homewood, a suburb of Birmingham. Higginbotham discovered Lim's body after returning home from work at around 8:00 p.m. Lim was alone in the apartment when Higginbotham left for work earlier that day. There were no signs of forced entry into the apartment. Higginbotham testified that Lim had previously told her that a man named ‘Steven’ was going to help Lim fix the brakes on her car. Higginbotham also testified that a man named Steven sometimes gave Lim a ride home from school. However, Higginbotham had never met Steven. Barbara Short testified that in March 1990, she lived with Petric, whom she had married in January 1990 after a brief courtship, in the Birmingham area.

"Lim's mother testified that she had recovered Lim's watches and gold chain from Lim's apartment after her death. However, Lim's mother also testified that she knew that Lim possessed wedding rings and that they were missing from the apartment and were never recovered. A former property evidence technician for the Homewood Police Department who collected evidence from Lim's apartment after her death testified that he specifically looked for Lim's rings after her death but that he never found them.

"When Lim was found lying on her bed in her apartment, her body was covered with a blanket, and her head was covered with a pillow. Examination of Lim's body revealed that she had suffered a stab wound to the back of her neck and a large cut across her throat. Lim was dressed in only a blouse and a brassiere. The brassiere was unlatched in the front, and only one button was buttoned on the blouse. The other buttons on the blouse were intact but unbuttoned. A T-shirt tied loosely around Lim's neck was soaked with blood. Lim's hands were tied behind her back with pantyhose. An exercise rope was tied tightly around Lim's right wrist, and the rope extended down to her ankles, which were tied together with the rope. The rope was tied in such a way that it would tighten if Lim's legs were straightened. The rope caused abrasions and bruising on certain areas of Lim's skin. All of Lim's fingernails were intact. The autopsy of Lim's body did not reveal any appreciable evidence of trauma to her genitalia. However, the presence of semen was discovered in Lim's vagina and anus. Also, some round bruises were discovered on Lim's right leg. Dr. Gary Simmons, the forensic pathologist who performed the autopsy on Lim, testified that the round bruises could have been caused by fingers grabbing Lim's leg, but he could not be certain what caused these bruises. Dr. Simmons testified that Lim ‘died from the sharp force entry, mainly the stab wound to the back of her neck and the incised wound to her throat.’ (R. 1123.)

"In 1990 and again in 1998, ABO blood testing and rudimentary DNA testing were performed on items recovered in and around Lim's body. The results of that testing excluded several individuals as suspects, but the results did not match the DNA of any person of interest. In 2004, additional DNA testing using more modern techniques revealed that the DNA profile from the semen found in Lim's body matched the DNA profile found on some of the cigarette butts that were in Lim's bedroom on the day she was killed.

"Debra Kay Dodd, who performs DNA analyses for the Alabama Department of Forensic Sciences, testified that, in June 2006, she received information from the administrator of the national Combined DNA Index System (‘CODIS’) that the DNA profile of the semen found in Lim's body matched the DNA profile of Petric, who at the time was in prison in Illinois. After receiving oral reference samples from Petric in August 2006, Dodd tested the samples and generated a DNA profile for Petric. Dodd found that Petric's DNA profile matched the DNA profile of the semen found in Lim's body and the DNA profile found on some of the cigarette butts that were found in Lim's bedroom.

"After Dodd had finished testifying, at the request of defense counsel, the defense and the prosecution agreed to admit into evidence a laboratory report prepared by a DNA expert for the defense. (R. 1279–82, 1296–97.) The report was marked as both a State's exhibit and a defendant's exhibit. (C. 532.) The results of that report did not contradict the results of Dodd's testing. Both Dodd and the expert for the defense concluded that the DNA profile of the semen donor on the vaginal swab of Lim's body matched Petric's DNA profile. (R. 1243–44, 1250–51; C. 537–38.) The defense expert also concluded that Petric's DNA was present in stains on a blanket recovered from the crime scene. (C. 537.) Additionally, the laboratory report prepared by the expert for the defense stated that ‘[t]he DNA profile obtained from the swab taken from the right hand fingernail clippings is a mixture’ and that ‘Steven Petric is included in this mixture.’ (C. 538.)

"At trial, the State presented evidence of other bad acts of Petric. Gerald Gear, who was a detective for the Joliet, Illinois, police department in 1994, gave testimony concerning Deborah O'Rourke, a white female who was found murdered in her apartment in Illinois at around 10:00 a.m. on July 6, 1994. The last time that anyone had communicated with O'Rourke was on July 3, 1994. Gear testified that O'Rourke was found lying on her stomach across the bed in her bedroom. The bedroom had been ransacked. O'Rourke was covered with a blanket and there was a pillow on top of her head. Also, a washcloth was lying on O'Rourke's shoulder. O'Rourke's blood had coagulated on another pillow near her head. A T-shirt was tied around O'Rourke's head. O'Rourke's arms were behind her back, and she had markings on her wrists and ankles that indicated that she had been bound with ligatures. There were no signs of forced entry into O'Rourke's apartment. Gear testified that his investigation revealed that O'Rourke was dating two men at the time of her death. One of those men was Petric, who was the maintenance man at O'Rourke's apartment complex. According to Gear, telephone records revealed that a call was made from O'Rourke's residence to Petric's residence at around 5:10 p.m. on July 4, 1994. Another telephone call was made from O'Rourke's residence to the residence of Petric's ex-girlfriend at 12:06 a.m. on July 5, 1994. Both the State and the defense stipulated that Petric used or attempted to use O'Rourke's ATM card on several occasions on July 5, 1994. A wedding ring and a set of keys were missing from O'Rourke's apartment. The keys were never recovered, but the ring was eventually found in Petric's possession.

"Dr. Joseph Sapala performed the autopsy on O'Rourke's body. At the trial in the present case, Dr. Sapala testified that O'Rourke was found nude on her bed and that her head was covered with blood. Dr. Sapala further testified that O'Rourke had a gag in her mouth and a shirt tied tightly around her neck and head. Dr. Sapala also noted that O'Rourke had bruising around her wrists that could have been caused by being bound with ligatures or handcuffs. According to Dr. Sapala, O'Rourke died from strangulation and stab wounds to her neck.

"DNA testing was performed on certain items that were recovered from O'Rourke's apartment. Those items included the washcloth that was found lying on O'Rourke's shoulder, O'Rourke's bed sheet, and a pillowcase. A stain on the washcloth contained a mixture of blood and semen, and the DNA profile identified on that stain matched Petric's DNA profile. The pillowcase contained a semen stain, and the DNA profile of that stain also matched Petric's DNA profile. The bedsheet contained two semen stains. The DNA profile identified on those two stains matched the DNA profile of the other man O'Rourke was

...