Wimbley v. State

1

Corey Allen Wimbley v. State of Alabama

No. CR-20-0201

Alabama Court of Criminal Appeals

December 16, 2022

Appeal from Washington Circuit Court (CC-09-170.60)

COLE JUDGE.

Corey Allen Wimbley, an inmate on Alabama's death row, appeals the circuit court's summary dismissal of his Rule 32 Ala. R. Crim. P., petition for postconviction relief.

Facts and Procedural History

In 2009, Wimbley was indicted for and convicted of two counts of capital murder -- one count for killing Connie Ray Wheat during the commission of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and one count for killing Wheat during the commission of an arson, see § 13A-5-40(a)(9), Ala. Code 1975. At trial, the State's evidence showed the following:

"On the morning of December 19, 2008, Wheat was working alone at the Harris Grocery store, which he owned, in Wagarville. Two women, one of whom was a longtime friend of Wimbley's, were driving by Harris Grocery when they saw Wimbley run out of the store and get into an automobile driven by Juan Crayton, III. A short time later, a customer walked into Harris Grocery to make a purchase. She smelled gasoline and saw liquid on the floor but was unable to locate Wheat. Other customers came into the store, and one of them T.J. Smith, walked behind the counter of the store, where he found Wheat dead on the floor. Smith went outside and telephoned emergency 911.

"Alabama State Trooper Robert Knapp was driving by Harris Grocery and saw several people in the parking lot gesturing at him. Trooper Knapp pulled into the parking lot of Harris Grocery and entered the store. He smelled gasoline and saw liquid on the floor and the counter. After looking at Wheat's body, Trooper Knapp secured the store and contacted his dispatcher, asking for additional law-enforcement officers to be sent to Harris Grocery.

"Crayton drove himself and Wimbley to the home of Earnest Lee Barnes in Mobile. After speaking outside to the two men, Barnes went alone into his house. When Barnes came out, he noticed that Crayton had moved Crayton's car from a concrete slab to a muddy area on the side of Barnes's house. The three men then got into Barnes's car and drove to a mall. Barnes stopped at a service station and, while pumping gasoline into his car, received a telephone call from his cousin, who told him that Wimbley and Crayton had 'just done something bad up there in Courtelyou.'1 (R. 731.) Barnes took the two men back to his house, where Crayton and Wimbley argued about who would drive Crayton's car. Crayton decided that he would drive the car, and Wimbley asked Barnes to drive him to the Greyhound bus station. Barnes drove Wimbley to the bus station, where Wimbley got his suitcase out of Barnes's car, went inside the station, and bought a bus ticket to Tampa, Florida.

"Barnes telephoned his cousin, with whom he had spoken at the service station, and his cousin told him that Wimbley and Crayton had killed someone. Barnes then went to the McIntosh Police Department to report his contact with Wimbley and Crayton.

"Wimbley went into a bathroom at the bus station and changed his clothes. Later that day, he was arrested at the bus station and transported to the Washington County jail.

"Crayton abandoned his car at a service station in Mobile. Inside the car, officers conducting a search pursuant to a search warrant found a box of matches and a pair of work gloves.

"Inside Harris Grocery, law-enforcement officers found the bullets that had passed through Wheat's body. Officers also noticed a red liquid on the counter and saw that the liquid had been 'slung across the floor.' (R. 683.) Officers found struck matches and noticed that one area of the floor was charred and that there was a 'small amount of charring on the counter by the register.' (R. 811.) Outside the store officers found a plastic bottle containing residue.

"Barnes gave officers permission to search his property. In Barnes's backyard, officers found Wheat's driver's license, Social Security card, and bank cards.

"Officers recovered Wimbley's suitcase from the bus station and searched it pursuant to a search warrant. The officers found $325 in assorted United States currency inside the pocket of a pair of shorts in the suitcase.

"After Wimbley was arrested, he invoked his right to counsel. Thereafter, on December 23, 2008, Wimbley requested to speak with members of the Washington County Sheriff's Office. Deputy Ferrell Grimes went to the jail where he reviewed a Miranda2 form with Wimbley before Wimbley signed it. During the interview that followed, Wimbley first told Deputy Grimes that, on the day of the murder, he had asked Crayton to take him to Mobile. Crayton and another man Wimbley knew only as 'Peanut' had picked up Wimbley and the three had gone to Creola where Crayton let Peanut out of the car. Crayton and Wimbley then had gone to Barnes's house. After Deputy Grimes told Wimbley that witnesses had seen him leaving the Harris Grocery after the shooting and that Crayton had talked with law enforcement, Wimbley said that Crayton had picked him up the morning of the robbery and murder and had given Wimbley words of encouragement. Wimbley told Deputy Grimes that before Crayton picked him up that day, Wimbley had mixed gasoline with a Fanta soft drink in a bottle. Wimbley stated that he took the bottle into Harris Grocery, shot Wheat, stole cash, and then poured the mixture in the bottle throughout the store. Wimbley also said that he first shot Wheat in the arm and that he had poured the gasoline mixture on Wheat after he had shot him.

"In January 2009, officers again searched Barnes's house. In a shed in the backyard, officers found a .38 caliber handgun, a compact disc case, and some United States currency.

"Dr. John Krolikowski, a senior medical examiner with the Alabama Department of Forensic Sciences, conducted the autopsy on Wheat. Dr. Krolikowski concluded that Wheat had been shot three times. One bullet struck Wheat in his right arm and shoulder before exiting his back. Another bullet entered the right side of Wheat's chest, traveled through his heart, and exited the left side of his chest. The third bullet entered Wheat's back and exited his chest. The cause of Wheat's death was multiple gunshot wounds, and the manner of his death was homicide.

"Timothy McSpadden, a firearm and tool-mark examiner with the Alabama Department of Forensic Sciences, determined that the bullets recovered from Harris Grocery had been fired from the .38 caliber handgun found in the shed at Barnes's house.

"Gary Cartee, a Deputy State Fire Marshal with the State Fire Marshal's Office, determined that the fire inside Harris Grocery was intentionally set and that the cause of the fire was the 'introduction of ignitable liquids onto the scene, set by an open flame, a match.' (R. 799.)

"Sharee Wells, a forensic scientist with the Alabama Department of Forensic Sciences, analyzed samples of liquids taken from Harris Grocery and the clothes Wheat was wearing when he was shot. Wells detected gasoline on the pair of pants and shirt Wheat was wearing when he was shot. She also determined that liquid found on the counter, floor, and a shelf inside Harris Grocery and liquid taken from the plastic bottle found in the parking lot of Harris Grocery was gasoline.

"The Federal Bureau of Investigation determined that one of the shoes Wimbley was wearing at the time of his arrest matched a shoe print officers found on a paper bag behind the counter at Harris Grocery.

"

"¹Testimony demonstrated that Harris Grocery was located at the intersection of Courtelyou Road and United States Highway 43.

"²Miranda v. Arizona, 384 U.S. 436 (1966)."

Wimbley v. State, 191 So.3d 176, 192-94 (Ala.Crim.App.2014) (plurality opinion). After the jury found Wimbley guilty of both counts of capital murder, it recommended that he be sentenced to death.^[1] The trial court followed that recommendation.

On December 19, 2014, this Court affirmed Wimbley's capital-murder convictions and death sentences, and, on September 25, 2015, the Alabama Supreme Court denied his petition for a writ of certiorari. On May 31, 2016, however, the Supreme Court of the United States vacated this Court's judgment and remanded Wimbley's case to this Court for further consideration in light of its decision in Hurst v. Florida, 577 U.S. 91 (2016). See Wimbley v. Alabama, 578 U.S. 1009 (2016). This Court did so, and, on December 16, 2016, this Court again affirmed Wimbley's capital-murder convictions and death sentences. See Wimbley v. State, 238 So.3d 1268 (Ala.Crim.App.2016). Wimbley again petitioned the Alabama Supreme Court for a writ of certiorari. The Alabama Supreme Court denied his petition on May 19, 2017. This Court issued a certificate of judgment that same day, making Wimbley's capital-murder convictions and death sentences final. Wimbley then petitioned the Supreme Court of the United States for a writ of certiorari. The Supreme Court of the United States denied his petition on October 30, 2017. See Wimbley v. Alabama, 138 S.Ct. 385, 199 L.Ed.2d 286 (2017).

On May 21, 2018, Wimbley filed a Rule 32 petition challenging his capital-murder convictions and death sentence. (C. 9-127.) In his petition, Wimbley alleged that his trial counsel were ineffective during the "culpability phase of trial" (C. 33-86), "during the penalty phase of trial" (C. 86-119), and "during the sentencing phase of the trial" (C. 119-20). Wimbley also alleged that the State had "violated [his] rights to due process of law … when it failed to disclose to [him] that one of its crucial witnesses had reasons to falsify her testimony against him." (C. 120-24.)

On September 9, 2018, the State moved to dismiss Wimbley's petition. (C. 151-250.)

Wimbley then moved the...