Van Pelt v. State

Kim Van Pelt v. State of Alabama

CR-12-0703

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2014-2015

August 14, 2015

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 Colbert Circuit Court

(CC-05-467.60)

KELLUM, Judge.

Kim Van Pelt appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attackedhis capital-murder conviction and his resulting sentence of death.

In December 2006, Van Pelt was convicted of capital murder pursuant to § 13A-5-40(a)(7), Ala. Code 1975, for murdering his wife, Sandra Marie Ozment Van Pelt, for pecuniary gain and was sentenced to death. This Court affirmed Van Pelt's conviction and sentence on direct appeal. Vanpelt v. State, 74 So. 3d 32 (Ala. Crim. App. 2009).¹ The Alabama Supreme Court denied certiorari review and a certificate of judgment issued on May 13, 2011.

Van Pelt timely filed a Rule 32 petition on May 10, 2012, alleging that the State had suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); that a juror's untruthful response during voir dire violated his constitutional right to a fair and impartial jury; and that he had been denied effective assistance of counsel during both the guilt phase and the penalty phase of his trial. On July 9, 2012, the State filed an answer and on November 14, 2012,the State filed a motion to dismiss Van Pelt's Rule 32 petition. The State argued that Van Pelt's Brady claim was precluded by Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P., and was insufficiently pleaded. The State also argued that Van Pelt's various claims of ineffective assistance of counsel relating to the guilt phase of his trial were insufficiently pleaded and/or without merit, and that Van Pelt's various claims of ineffective assistance of counsel relating to the penalty phase of his trial were insufficiently pleaded and/or were meritless. The State generally denied Van Pelt's claim of juror misconduct.

On December 28, 2012, the circuit court entered a lengthy order summarily dismissing Van Pelt's petition. Van Pelt subsequently filed a postjudgment motion in which he objected to the circuit court's adoption of a proposed order of dismissal filed by the State. The motion was denied by operation of law. This appeal followed.

In our original opinion affirming Van Pelt's conviction and death sentence, this Court set out the facts of the crime as follows:

"The State's evidence tended to show that on November 24, 2004, Jerry Evans discovered the nudebody of Sandra Vanpelt on the side of County Road 53 near Hamilton. The medical examiner, Dr. Emily Ward, testified that Sandra died of 'head injuries and suffocation.' Dr. Ward further testified that based on the undigested contents of her stomach, Sandra died within two hours of eating a meal that included mushrooms.

"Sandra and Vanpelt met after Sandra responded to Vanpelt's personal ad on the Internet in the fall of 2004. At that time, Sandra lived in Phenix City and was working at a Shoney's restaurant, and Vanpelt lived in Memphis, Tennessee, and was working in construction. After their relationship progressed, Sandra transferred to a Shoney's restaurant in Muscle Shoals and moved to Tuscumbia so that she could be closer to Vanpelt. The two married on November 8, 2004, and lived in a mobile home in Tuscumbia.

"On November 2, 2004, Vanpelt contacted an insurance company about obtaining life insurance policies on himself and Sandra. Several of Sandra's coworkers at Shoney's restaurant testified that Vanpelt came into the restaurant on November 11, 2004, to have Sandra sign a life insurance application. Later that same day, three days after the two were married, Vanpelt submitted the policies and a check for the first month's premiums to the insurance company. Vanpelt was the beneficiary of the $300,000 proceeds of Sandra's insurance policy.

"On November 22, 2004, after the two had been married for approximately two weeks, Vanpelt filed a missing person's report on his wife. He told police that she left to run errands around 9:00 a.m. on the morning of November 22, 2004, and did not return. Sometime later on the same day, Vanpelt went to a local Wal-Mart store and purchased candles, trash bags, a mop, and various cleaners. One cleaner named, 'Zout oxy,' stated on the label that it could remove bloodstains.

"Police located Sandra's Pontiac Grand Am automobile in the parking lot of an abandoned Winn-Dixie grocery store near the Vanpelts' mobile home on November 23, 2004. Sandra's clothes were in the trunk, and cigarette butts, which matched the brand Vanpelt smoked, were in the ashtray. Sandra's body was discovered about 60 feet off a county road where it had been dumped.

"After Sandra's body was discovered, police searched the Vanpelts' mobile home. Police testified that the home was spotless. Roger Morrison, the laboratory director of the Huntsville Regional Laboratory for the Alabama Department of Forensic Sciences, testified that using a luminol spray he discovered blood in the master bedroom of the mobile home. Luminol, he testified, would detect very 'diluted bloodstains.' The blood matched Sandra's blood. Police also found a picture of Sandra and the receipt for the cleaning materials in a garbage can inside the mobile home.

"Investigator Marc McCormick of the Alabama Bureau of Investigation testified that Vanpelt gave a statement to police. Vanpelt said that on the evening before his wife's disappearance, he cooked dinner for her that included sauteed mushrooms. Vanpelt also told police that Sandra was at home Sunday night and that she left the mobile home Monday morning. This statement was inconsistent with the medical examiner's testimony regarding the time of Sandra's death.

"Three witnesses testified that Sandra's white Pontiac automobile was not at the mobile home in the early morning hours of November 22, 2004. One witness, Ray McMahan, also testified that when he drove by the Vanpelts' mobile home early that morning he saw a black Chevrolet truck backed up to the front door of the mobile home and a rug hangingover the railing. Vanpelt's vehicle was a black Chevrolet truck.

"Evidence was also presented that while Vanpelt was incarcerated awaiting trial, he wrote to Edward Parson, a fellow inmate at the Colbert County jail, and asked Parson to assist him with a 'mock' confession so that he could get out of jail. (C.R. 398.) Vanpelt wrote that he wanted Parson to handwrite the 'mock' confession that Parson would compose and then have someone from the outside mail it to police. Id. He wrote that if the case was dismissed he would file a 'malicious prosecution' action against the county. Vanpelt also wrote to Sandra Tucker, an inmate at the Lauderdale County Detention Center, and said that he believed that her boyfriend was involved in a murder-for-hire plot with his wife and that Sandra had offered Tucker's boyfriend money to kill Vanpelt.

Patti Lawson, Vanpelt's former fiancée, testified that she met Vanpelt in 2000 as a result of a personal ad she posted on the Internet; that her relationship with Vanpelt lasted for four years; that she was at one point engaged to him; and that the engagement ring Vanpelt gave her was the same ring he gave Sandra. Lawson could identify the ring, she said, because she designed its band. Lawson further stated that around the middle of October 2004, Vanpelt telephoned her and said that he wanted them to get back together. He sent her an airline ticket to Memphis, Tennessee -- the ticket was dated October 29 -- 10 days before Vanpelt married Sandra. Lawson said that she did not use the ticket."

Vanpelt, 74 So. 3d at 45-46.

Standard of Review

"[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's reviewin a Rule 32 proceeding is de novo." Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). "However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.'" Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003)(quoting Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992)).

"On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence." Ferguson v. State, 13 So. 3d 418, 424 (Ala. Crim. App. 2008). Additionally, "[i]t is well settled that 'the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.'" Nicks v. State, 783 So. 2d 895, 901 (Ala. Crim. App. 1999)(quoting State v. Tarver, 629 So. 2d 14, 19 (Ala. Crim. App. 1993)).

Finally, Rule 32.7(d), Ala. R. Crim. P., authorizes a circuit court to summarily dismiss a Rule 32 petition

"[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner torelief under this rule and that no purpose would be served by any further proceedings...."

I.

On appeal, Van Pelt reasserts most of the claims made in his Rule 32 petition.² Before addressing the claims in Van Pelt's Rule 32 petition, we first address preliminary arguments Van Pelt makes on appeal regarding the conduct of the Rule 32 proceedings and procedural errors he claims the circuit court made in summarily dismissing his petition.

A.

Van Pelt first contends that the circuit court violated Martinez v. Ryan, ...