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John
Forrest PARKER
Classification: Murderer
Characteristics:
Murder for hire
Number of victims: 1
Date of murder:
March 18,
1988
Date of birth:
May 21, 1968
Victim profile: Elizabeth Dorlene Sennett
(female, 45)
Method of murder: Stabbing
with knife
Location: Colbert County, Alabama, USA
Status:
Executed
by lethal injection in Alabama on June 10,
2010
The United States Court
of Appeals For the Eleventh Circuit
Charles Sennett was a minister in financial trouble and weary of his
marriage to his recently insured wife, Elizabeth Dorlene Sennett. He
contracted with one of his tenants, Billy Gray Williams, to murder his
wife for $3000. Williams, in turn, hired John Parker and Kenneth
Eugene Smith for $1000 each to commit the murder. Williams gave Parker
$100 to purchase a weapon.
Parker drove his vehicle to the Sennetts’ residence
while Smith, who was in the passenger seat, sharpened Parker’s
survival knife. Parker parked his car behind the Sennetts’ home, told
Dorlene that her husband had given them permission to look at the
property as a hunting site and, upon receiving Dorlene’s approval,
walked into a wooded area with Smith.
They later returned to the house
and received permission from Dorlene to use her bathroom. While in the
bathroom, Parker put cotton socks onto his hands. He then exited the
bathroom, jumped Dorlene, and began hitting her. Parker and Smith hit
Dorlene with a galvanized pipe and stabbed her while she pled with
them not to hurt her. Consistent with their plan, they broke the glass
in the medicine cabinet and took a stereo and video cassette recorder
(VCR) to make the assault look like it was done during a burglary.
Parker and Smith were both convicted of capital
murder. Although the jury returned a verdict of life without parole
for Parker, the trial judge sentenced him to death. Smith is still
awaiting an execution date to be set. Williams is serving a life
sentence without parole for his capital murder conviction. A week
after becoming a suspect in the case, the victim's husband committed
suicide.
Citations:
Parker v. State, 610 So.2d 1171 (Ala.Cr.App. 1992). (Direct
Appeal) Parker v. Allen, 565 F.3d 1258 (11th Cir. 2009). (Habeas)
Final/Special Meal:
Fried fish, french fries and iced tea.
Final Words:
"I'm sorry. I don't ever expect you to forgive me. I really am sorry."
ClarkProsecutor.org
Alabama Department of Corrections
Inmate: PARKER, JOHN FORREST
Gender: M
Race: W
DOB: 5/21/1968
Prison Holman
Received:6/22/1989
Charge: MURDER
County: Colbert
State of Alabama executes John Forrest Parker
Al.com
Thursday, June 10, 2010
ATMORE -- Alabama corrections authorities say they
executed by lethal injection John Forrest Parker at 6:41 p.m. CST
Thursday.
Parker, 42, was convicted of capital murder and
sentenced to die for the killing of Elizabeth Dorlene Sennett, a 45-year-old
grandmother who was stabbed repeatedly and beaten with a pipe at her
Colbert County home. Prosecutors said Parker was one of two men paid
$1,000 each by a third man on behalf of her husband, the Rev. Charles
Sennett, who was deeply in debt and wanted to collect on insurance. He
committed suicide one week after his wife's slaying.
Parker appealed to the U.S. Supreme Court late
Wednesday after the Alabama Supreme Court voted 7-2 to reject his plea
for a stay. Shortly before the scheduled execution time of 6 p.m.
Thursday, the U.S. Supreme Court rejected in appeal. In the appeal,
Parker's attorneys challenged the constitutionality of an Alabama law
that allowed the trial judge to override the jury's recommendation
that Parker be sentenced to life in prison without the possibility of
parole.
The Alabama Attorney General's Office filed a
response Thursday saying Parker had raised the override argument
earlier in his appeal. They said that it was rejected by courts and
that the trial judge sufficiently considered the jury's recommendation
before sentencing Parker to death.
Parker was moved earlier this week into a holding
cell just a few steps from the death chamber where he is to be
strapped to a gurney and receive the lethal injection. He spent most
of Thursday meeting with friends and family members, including his
mother, Joan Parker, and his father, Edward Parker. Friend Carolyn
Watson and two religious advisers from the Kairos prison ministry, Ben
Sherrod and Taylor Perry, were to witness the execution.
Alabama executes contract killer
News24.com
June 10, 2010
Washington - Convicted murderer John Forrest Parker
was executed Thursday in the US state of Alabama for the 1988 contract
killing of a pastor's wife, a prison official said. Parker, 42, died
by lethal injection at 18:41 (23:41 GMT) for the killing of Elizabeth
Dorlene Sennett, Alabama prison authority spokesperson Brian Corbett
said. "I'm sorry. I don't ever expect you to forgive me," Parker told
the woman's family shortly before dying. "I really am sorry."
Parker was 19 when he and an accomplice accepted a
proposal by a pastor to kill his wife, a 45-year-old grandmother, for
money. Sennett was stabbed and beaten to death. Her debt-ridden
husband had taken out a life insurance policy on behalf of his wife
shortly before recruiting Parker and a friend to kill her. The husband
committed suicide a few days after the killing.
After his trial, a jury convicted Parker of capital
murder and sentenced him to life imprisonment without possibility of
parole. But the judge overruled the jury's punishment and sentenced
him to death, his lawyers said in a statement.
Among the 35 US states that employ the death
penalty, Alabama is one of three that allow judges to override the
verdict of a jury. This was the second execution of the year in
Alabama and the 27th overall in the United States in 2010.
Parker put to death
By Tom Smith - TimesDaily.com
Friday, June 11, 2010
Charles Sennett said death is not easy for anybody,
right or wrong. His comments came Thursday just minutes after he
witnessed the execution of John Forrest Parker, the man convicted in
the 1988 murder-for-hire death of Sennett's mother, a Colbert County
minister's wife. Sennett and his brother, Michael, were at Holman
Prison and watched Parker, 42, die from lethal injection.
Alabama corrections authorities said Parker was
executed at 6:41 p.m. He is the first Shoals resident to die by lethal
injection since it began in 1927.
Before the execution, Parker told the Sennett
family he was sorry for what he did. “I'm sorry; I don't ever expect
you to forgive me. I really am sorry,” Parker said just minutes before
the execution process began. Parker, a Florence resident at the time,
was convicted of capital murder June 6, 1989.
Attorneys at the Equal Justice Initiative in
Montgomery who were representing Parker tried to get the U.S. Supreme
Court to stop the execution. Corrections officials said the request
was rejected a few minutes before the execution was scheduled to begin.
Sennett said his family was told Gov. Bob Riley called the prison
about 1 p.m. Thursday to inform corrections officials that he would
not stop the execution.
Elizabeth Sennett, 45, died March 18, 1988, at
Helen Keller Hospital in Sheffield after she was brutally beaten and
stabbed at her home on Coon Dog Cemetery Road in Colbert County.
Parker, along with Kenneth Eugene Smith and Bill Gray Williams, both
also of Florence, are accused of being paid $1,000 each to kill
Elizabeth Sennett. Authorities say Sennett's husband, who was a
minister at Westside Church of Christ in Sheffield at the time,
contracted Williams to kill his wife for $3,000. According to court
documents, Williams paid Smith and Parker $1,000 each to commit the
murder.
Smith and Parker were both convicted of capital
murder and sentenced to death. Smith is still awaiting an execution
date to be set. Williams is serving a life sentence without parole for
his capital murder conviction. A week after becoming a suspect in the
case, the victim's husband, also named Charles Sennett, shot and
killed himself in his son's backyard.
“This is one of the steps we have to take to get
closure and justice,” Sennett said after the execution. “We still have
another step with Smith, but tonight was a step in the right direction.”
Colbert County Sheriff Ronnie May, who was the lead investigator on
the murder case, said he has continued to stay in touch with the
victim's sons through the years. “I know they want to start the
closure process, and I hope this does it for them,” May said after
learning of Parker's execution.
Sennett said he and his brother still have
unanswered questions. “Why this happened,” said Sennett, who was 25
and married with two children when his mother was killed. “Daddy took
the answers to his grave and so are these boys (Parker and Smith).”
Officials who investigated the murder said the underlying motive was
that the husband was trying to get out of his marriage and that he was
heavily in debt. “This was a devastating a situation on these two boys,”
May said. “To lose your mom in this fashion and then learn that your
father orchestrated the entire thing and then he took his own life
before he could be punished. “I feel for these two boys and their
families, as well as the Parker family.”
Sennett said he and his brother met with Parker's
mother and father Thursday morning in Atmore. “They were remorseful
for what their son did,” Sennett said. “We never hated them. They
can't do anything about what their son did. We know they're hurting.
“The Parker family is a victim to a point and our hearts go out to
them.”
Testimony at trial indicated Elizabeth Sennett was
stabbed multiple times to the right side of her chest, the right side
of her back, the base of her neck, forehead, nose and scalp and
sustained contusions on her nose and forehead. Records indicate Parker
and Smith are accused of hitting the victim with a galvanized pipe and
then stabbing her while she pleaded with them not to hurt her.
Sennett said his family wishes to express their
sympathy to the Parker family and hope they find a way to deal with
their loss. “We know what it is to lose a loved one,” Sennett said.
“The only difference today is that John Parker had 22 years to say
goodbye. We did not have that chance to say goodbye to our mom. It is
a bittersweet day for both sides.”
He said the Parker family will need the support of
family and friends, just as his family has had for 22 years. “As for
the death of John Parker, the pain he did not feel today does not
compare to that he inflicted on our mother 22 years ago,” Sennett said.
“We would like to thank all of our family and friends for the prayers
and calls that we have received this week and the last 22 years.
Without the support of family and friends, we couldn't make it through.
“Now, this part of it is over.”
Shoals Man Executed Thursday Night
By Mary Stackhouse - Whnt.com
June 10, 2010
A man convicted of murdering a Colbert County woman
more than two decades ago was put to death at 6:41p.m. Thursday at
Holman Prison in Atmore. John Forrest Parker was the first Shoals man
to be executed by lethal injection in the state. Parker was convicted
in the 1988 contract killing of Elizabeth Dorlene Sennett, who was
stabbed to death in her home.
Thursday, Parker's attorneys asked the US Supreme
court for a last minute stay to halt the execution. That request was
countered by the Alabama Attorney General's Office, who filed papers
opposing the stay.
Before he served as the Colbert County Sheriff,
Ronnie May was the lead investigator in this case. May says he has
spoken to Sennett's family recently and hopes the execution will bring
them some closure.
Just over 22 years ago, authorities found 45 year
old Elizabeth Sennett's in her Cherokee home on Coon Dog Cemetery Road.
Officials say Parker was hired, along with two other men, to kill her.
The state claimed Sennett's husband, Charles Sennett, a minister at
the West Side Church of Christ in Sheffield was part of the crime. "It
was a very cruel and brutal decision made by one man to have his wife
killed in a very brutal fashion," said May. "I guess that's what I
keep thinking about is the impact that it's had on the sons and the
family."
According to May, Parker beat Sennett with an iron
rod and then repeatedly stabbed her to death in her home. Afterwards,
authorities say they disposed of the weapon in a pond next to the home.
May hopes, after all this time, that Parker's execution will bring the
family some relief. "I know what they've had to go through," said May.
"This hopefully will bring some closure for them so they at least feel
like some form of justice has been done because of what was done to
Mrs. Sennett."
John Forrest Parker
ProDeathPenalty.com
In March 1988, Charles Sennett contracted with one
of his tenants, Billy Gray Williams, to murder his wife, Elizabeth
Dorlene Sennett, for $3000. Williams, in turn, hired John Parker and
Kenneth Eugene Smith for $1000 each to commit the murder. Williams
gave Parker $100 to purchase a weapon on 17 March 1988, and promised
to pay him the balance when the job was completed. Instead of buying a
weapon, Parker used the $100 for drugs and injected 3 cubic
centimeters of Talwin, a narcotic analgesic (painkiller), while en
route to the Sennetts’ residence on 18 March.
Parker drove his vehicle to the Sennetts’ residence
while Smith, who was in the passenger seat, sharpened Parker’s
survival knife. Parker parked his car behind the Sennetts’ home, told
Dorlene that her husband had given them permission to look at the
property as a hunting site and, upon receiving Dorlene’s approval,
walked into a wooded area with Smith. They later returned to the house
and received permission from Dorlene to use her bathroom. While in the
bathroom, Parker put cotton socks onto his hands. He then exited the
bathroom, jumped Dorlene, and began hitting her. Parker and Smith hit
Dorlene with a galvanized pipe and stabbed her while she pled with
them not to hurt her.
Consistent with their plan, they broke the glass in
the medicine cabinet and took a stereo and video cassette recorder (VCR)
to make the assault look like it was done during a burglary. Parker
later burned his clothes and threw the stereo off a bridge, and he and
Smith threw away the knife that they used. Parker subsequently
received the additional $900 for the murder.
When Sennett arrived home, he found his house
ransacked and Dorlene close to death, and called Colbert County
Sheriff’s Investigator Ronnie May at 11:44 A.M. May dispatched a
rescue squad and sheriff’s deputies to the Sennetts’ home. May and
another deputy arrived at the Sennetts’ home about 12:05 P.M., and the
rescue squad arrived soon thereafter. Dorlene was transported to the
hospital, and seen by Dr. David Parks McKinley. Resuscitation efforts
failed and Dorlene was declared dead as a result of cardiac arrest and
exsanguination. An examination of her body revealed multiple stab
wounds to the right side of her chest, the right side of her neck, the
base of her neck, forehead, nose, and scalp, and contusions on her
nose and forehead.
Hairs found at the crime scene in a cap located
near Dorlene’s body were consistent with Smith’s known hair sample,
and on an afghan that had been wrapped around Dorlene’s body were
consistent with fibers later taken from Parker’s knife. The VCR taken
from the Sennetts’ house was found inside Smith’s residence.
In April 1988, Parker was indicted for the capital
murder of Dorlene by beating and stabbing her with a knife for the
pecuniary consideration of $1000. At trial, he was found guilty by a
jury; the jury recommended a sentence of life imprisonment without
parole. The judge, however, overrode the jury and sentenced Parker to
death on 21 June 1989. Charles Sennett, a Church of Christ minister,
committed suicide on 25 March 1988, seven days after Dorlene died.
Williams was convicted of capital murder and sentenced to life
imprisonment without the possibility of parole. Smith was convicted of
capital murder and sentenced to death.
UPDATE: John Forrest Parker, executed for the 1988
murder of Elizabeth Dorlene Sennett, told the woman's family, "I'm
sorry, I don't ever expect you to forgive me. I really am sorry"
moments before he died by lethal injection at Holman Prison in Atmore.
Parker v. State, 610 So.2d 1171 (Ala.Cr.App.
1992). (Direct Appeal)
Defendant was convicted in the Colbert Circuit
Court, Inge Johnson, J., of capital murder for pecuniary gain and was
sentenced to death. After remand, 587 So.2d 1072, the Circuit Court
reimposed death sentence. The Court of Criminal Appeals, Bowen, J.,
held that: (1) prosecution's use of peremptory strikes to remove eight
black veniremembers did not violate principles of Batson ; (2) trial
judge complied with statutory requirements for capital sentencing
proceeding; and (3) sentence of death was neither excessive nor
disproportionate to penalty imposed in similar cases. Opinion
extended; affirmed.
ON RETURN TO REMAND
BOWEN, Judge.
The appellant, John Forrest Parker, was convicted
of the capital offense of murder for pecuniary gain, as defined in
Ala.Code 1975, § 13A-5-40(a)(7), and sentenced to death. Parker v.
State, 587 So.2d 1072 (Ala.Cr.App.1991). On original submission, we
remanded this cause with directions that the trial court (1) conduct
an evidentiary hearing in accordance with Ex parte Bankhead, 585 So.2d
112 (Ala.1991), and require the prosecutor to state his reasons for
striking black veniremembers, Parker, 587 So.2d at 1077, and (2)
correct certain errors and omissions in the imposition of sentence, id.
at 1100. I.
After conducting an evidentiary hearing on the
matter, the trial judge, with commendable thoroughness and a
conscientiousness warranted by the sentence imposed in this case,
entered a written order in which she made specific findings of fact
and concluded that the principles of Batson v. Kentucky, 476 U.S. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were not violated by the
prosecution's use of its peremptory strikes to remove eight black
venire members. That order is attached to this opinion as Appendix I.
The findings and conclusions contained in that
order are fully supported by our own independent review of the record
and are approved by this Court. We find that no violation of the
principles of Batson v. Kentucky, supra, or Ex parte Branch, 526 So.2d
609 (Ala.1987), occurred in this case. See Ex parte Bird and Warner,
594 So.2d 676 (Ala.1991). II.
In remanding this cause on original submission,
this Court explicitly instructed the trial court to “1) make new
findings regarding the aggravating and mitigating circumstances, 2)
weigh those aggravating and mitigating circumstances and determine
whether the aggravating circumstances outweigh the mitigating
circumstances, and 3) enter a proper sentencing order as required by
Ala.Code 1975, § 13A-5-47(d).” Parker, 587 So.2d at 1100. In response,
the trial judge entered an “AMENDED ORDER OF COURT ON IMPOSITION OF
SENTENCE.” That order is attached to this opinion as Appendix II.
In that amended sentencing order, the trial judge,
as required by § 13A-5-47(d), entered specific written findings
concerning the existence or nonexistence of each of the eight
statutory aggravating circumstances set forth in § 13A-5-49, and the
existence or nonexistence of each of the seven statutory mitigating
circumstances set forth in § 13A-5-51. The trial judge found the
existence of one aggravating circumstance: that the capital offense
was committed for pecuniary gain. § 13A-5-49(6). The trial judge found
the existence of two statutory mitigating circumstances: that the
appellant has no significant history of prior criminal activity, §
13A-5-51(1); and that the appellant was 19 years old at the time of
the commission of the crime, § 13A-5-51(7). The trial judge found the
existence of two nonstatutory mitigating circumstances: the jury's
recommendation of life without parole and the appellant's remorse. The
trial judge then concluded that the aggravating circumstance outweigh
the mitigating circumstances. III.
The appellant contends that there is no evidence to
support the trial court's finding that the Appellant and Smith held
Mrs. Sennett “down with a small blue chair and stabbing her while she
was asking them not to hurt her.” R. 25 and 28. The finding is
directly supported by the appellant's statement to Investigator May.
See R. 1419. IV.
The amended order of the trial court is proper, is
supported by the record, and fully complies with the requirements of §
13A-5-47(d). Therefore, this Court now reviews the propriety of the
sentence of death imposed by the trial court.
This Court has searched the record and found no
error which “has or probably has adversely affected the substantial
right of the appellant.” Rule 45A, A.R.App.P.; accord, § 13A-5-53(a).
There is no evidence that the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor. §
13A-5-53(b)(1). This Court's independent weighing of the aggravating
and mitigating circumstances indicates that death was the proper
sentence. § 13A-5-53(b)(2). The sentence of death in this case is
neither excessive nor disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant. §
13A-5-53(b)(3).
Therefore, the appellant's conviction for capital
murder and his sentence to death are affirmed. All Judges concur.
APPENDIX I
State of Alabama Colbert County
In the Circuit Court of Colbert County, Alabama
John Forrest Parker, Appellant
vs.
State of Alabama
Case Nos. CR 89-838, CC 88-105.
Dec. 3, 1991.
ORDER
This cause was heretofore remanded by the Court of
Criminal Appeals, State of Alabama, for an evidentiary hearing at
which the prosecution was ORDERED to give reasons for its use of
peremptory challenges against black venire members and if not able to
articulate specific race-neutral explanations that are related to this
particular case a new trial be granted the appellant. This Court notes
that the defendant has never established a prima facie case of
discrimination and this is not a case where the prosecutor has
volunteered his reasons prior to the trial court's determination on
the defendant's establishment of a prima facie case of discrimination.
The present hearing is required pursuant to Ex parte Bankhead, 585
So.2d 112 (Ala.1991). A hearing was set for November 12, 1991 at 2:30
p.m. The State's attorneys, Gary Alverson and Ronald Hudson, were
present and defendant, John Forrest Parker, was present in person and
represented by his attorneys, Thomas Heflin and Gene Hamby. An
additional hearing was held on motion of defendant on November 18,
1991, at 2:10 p.m. The same parties were present. The Court having
proceeded to consider the testimony given by the District Attorney,
Gary Alverson, on behalf of the State, as well as having considered
all of the testimony and evidence presented on behalf of the defendant,
and the court noting for the record that 59 jurors from the original
jury venire were present, having responded to subpoenas issued by the
defendant, and the Court further having considered the original jury
venire list which was stipulated to by the parties and which is
already a part of the record on appeal, beginning with No. 3, S.A. and
ending with No. 129, M.W., which list also reflects the strikes made
by the State and the strikes made by the defendant, and the Court
having considered all of the testimony and evidence presented in open
Court, and based upon said evidence and testimony, the Court does find
that the venire consisted of 79 prospective jurors, 10 of which were
excused, leaving the number at 69. There were 9 black jurors on said
venire, and 60 white jurors. The 9 black venire members comprised 13%
of the venire. The blacks comprised 8% of the trial jury.
The Court further finds that the State presented
evidence which indicated that venire member No. 3, a black female
named S.A., was stricken by the State because she was the daughter of
E.A., who was being prosecuted by the District Attorney at that time
for the offense of Theft of Property in the First Degree.
The Court further finds that venire member No. 21,
a black female, was stricken by the State because she knew the
victim's husband's girlfriend, D.T. The victim's husband had procured
this defendant and his co-defendants to kill his wife, and D.T. was a
prospective witness for the defendant at the time of selection of the
jury. The District Attorney also testified that she was stricken
because she was related to one R.C. who had been prosecuted for
violation of the Alabama Uniform Controlled Substance Act and because
of her statement that she was generally opposed to the death penalty.
The State further presented evidence that B.R., white veniremember No.
92, was struck for the same general reasons by the State. The State
further presented evidence that said veniremember T.C. indicated
during voir dire that she had some knowledge and training in
psychology. The District Attorney testified that he struck all
veniremembers who had training in the field of psychology because they
might place undue emphasis on defense witness Dr. Crowder's testimony.
The District Attorney testified that white veniremember No. 129, M.W.,
white veniremember No. 92, B.R., white veniremember No. 63, R.L.,
white veniremember No. 58, S.L., white veniremember No. 9, R.B., and
white veniremember No. 82, M.N., were all stricken for that same
reason, inasmuch as they responded during voir dire that they had some
knowledge and training in the field of psychology.
With respect to veniremember No. 25, a black male
by the name of J.D., the State indicated that the reason they struck
said veniremember was because he indicated during voir dire that he
had has [sic] difficulty staying overnight, and white veniremember 53,
J.J., and white veniremember No. 40, P.H., were stricken for the same
reason by the State. The State further presented evidence that J.D.
had stated during voir dire: “I really don't want to be here” and that
that was an additional reason the State struck veniremember No. 25,
J.D.
The State presented evidence that they had stricken
veniremember No. 67, a black female by the name of W.M., because she
indicated during voir dire that she has worked with members of the
family of Billy Gray Williams, the black co-defendant to the defendant
of this case, whose case had been tried at the time; that she had
heard discussions regarding this case, and white veniremember No. 68,
B.M., was stricken for the same reason inasmuch as she stated during
voir dire that she knew the family of the defendant, John Forrest
Parker, in this case, the co-defendant of Billy Gray Williams.
With respect to veniremember No. 77, black female
C.M., the State presented evidence that they had stricken her because
the District Attorney had information that she was a cousin to R.M.
and J.M., who had been prosecuted by the District Attorney on drug
charges and further on the ground that drug use and violations were
factually related to this case. The State further offered as an excuse
for striking veniremember C.M. she had a child born out of wedlock and
that the defendant in this case likewise had a child born out of
wedlock, and the State indicated that they felt like veniremember C.M.
would be sympathetic toward the defendant and his case for this reason.
With respect to veniremember No. 83, a black female,
A.O., the State presented evidence that they struck veniremember A.O.
because she was married to T.O., who is the brother of W.E.O., who at
the time of the trial of this cause had a pending criminal case
against him for sale of cocaine. Further, this veniremember's husband,
T.O., was a defendant in a civil forfeiture case arising out of the
same sale of cocaine case against W.E.O., at the time this case was
tried, and, further, veniremember A.O. stated during voir dire that
she knew the attorney for the defendant, Gene Hamby, through her work
with the City of Sheffield.
With respect to veniremember No. 20, black male,
E.L.W. the State offered as *1175 evidence of the reason for their
striking veniremember E.L.W. that he had a series of traffic offenses
in recent years, indicating a disregard for the law, and State offered
testimony that they also struck veniremember No. 129, M.W. with a
similar type record for the same reason. With respect to veniremember
No. 121, black female by the name of M.A.W., the State indicated that
they struck veniremember M.A.W. because she had indicated during voir
dire that she had training in the area of psychology. The State struck
white veniremember No. 129, M.W., white veniremember No. 92, B.R.,
white veniremember No. 63, R.L., white veniremember No. 58, S.L.,
white veniremember No. 9, R.B., and white veniremember No. 82, M.N.
for the same reason, in addition to black veniremember No. 21, T.C.,
who was struck for this reason, among others, by the State. Black
veniremember No. 113, C.T., served on the trial jury in this case.
On cross-examination the District Attorney, Gary
Alverson, testified that his information regarding traffic tickets was
obtained from local police department and the Colbert County Circuit
Clerk's records; that the State was particularly concerned about
jurors with more than one traffic ticket. The District Attorney
testified that information on veniremembers' relatives regarding
felony cases, pending or disposed of, was obtained from the circuit
court files in the Circuit Clerk's office in Colbert County.
No evidence was presented during the hearing which
contradicted the State's evidence that veniremember T.C. was related
to R.C., who had been prosecuted by the District Attorney on a drug
case; that veniremember C.M. was related to R.M. and J.M., who were
prosecuted by the District Attorney on drug charges; that veniremember
A.O. was related to T.O., who was a defendant in a forfeiture case
where the State was the plaintiff at the time of the trial, and that
she was related to W.E.O., who was a defendant in a sale of cocaine
case brought by the State at the time of this trial. Further, the
State's testimony with respect to pending charges and convictions of
relatives of these veniremembers was uncontradicted.
The District Attorney testified that he did not ask
members of the jury venire whether or not anyone had children born out
of wedlock because he felt it would embarrass the veniremembers to
whom they would apply. The District Attorney obtained this information
through other sources, namely through local law enforcement officers
and his investigator's efforts in Colbert County, Alabama.
The Court further finds that Juror No. 88, M.Q.,
testified that he had a first cousin who had been convicted of a
felony (breaking into some houses) but that he thought it was in
Franklin County. Said juror also testified that he did not have more
than one regular traffic ticket but had traffic tickets when he was
part of the railroad crew which was discharged for violating the
speeding regulations for trains.
Veniremember No. 46, L.H., testified that she had a
family member, namely an uncle by marriage, who had been convicted of
a felony in Colbert County. Juror No. 8, J.R.A., testified that he had
a relative who had been convicted of a felony, namely, making whiskey,
fifteen years ago. Juror No. 78, N.G.M., testified that he had a
brother who had been convicted of a felony twenty years ago in
Lawrence County, Alabama (as an accessory to a robbery). Juror No. 85,
W.G.P., testified that he had had more than one traffic conviction;
however, only one was in Colbert County, and it was seven to eight
years ago. Juror No. 11, J.S., testified that she had more than one
traffic ticket, namely, two old ones, one from Florence, Lauderdale
County, Alabama, and one from Muscle Shoals, Colbert County, Alabama,
another one in 1987 in Lauderdale County, and one in Sheffield,
Alabama, in 1988. Juror No. 64, L.L., testified that she had a
relative in Florida, an uncle on her mother's side, who was convicted
of a felony 12-15 years ago; said juror thought it was a *1176
manslaughter case, and the conviction was in the State of Florida.
Juror No. 41, G.H., foreman of the trial jury, testified that he had a
first cousin who had been convicted of what he thought was a felony in
Madison County, Alabama. Said juror further testified that during the
past ten years he has had two speeding tickets, one in Colbert County
and one in Lauderdale County. Juror No. 66, T.R.M., testified that he
had had a couple of traffic tickets, one in Leighton, Colbert County,
Alabama, and one in Lauderdale County, from Rogersville in 1982.
Based on the testimony presented by the District
Attorney, the Court finds that it was the practice of the District
Attorney to check municipal police departments, the district court and
the circuit court in Colbert County, Alabama, for traffic violations
and further finds that the practice of the District Attorney's office
was to strike jurors who had a series of traffic violations within the
recent past, and further finds that said practice was not rebutted by
the testimony of the jurors called on behalf of the defendant, the
Court finding that none of those jurors had more than one traffic
ticket from Colbert County, either municipal, district or circuit
court, in the recent past, and although some had more than one traffic
ticket, said convictions were in other circuits. The information
concerning out-of-Circuit or out-of-State convictions was not shown to
be known to the District Attorney at the time of striking of the jury.
The Court further finds that of the jurors who testified on behalf of
the defendant one would have been stricken by the State pursuant to
the State's practice, namely veniremember No. 46, L.H., and the
District Attorney agreed that he overlooked her relationship by
marriage to a person who had been convicted of a felony in Colbert
County, Alabama. The Court further finds from the evidence that if the
State had sought additional verification of its traffic information on
veniremembers through the computer record from the State Department of
Public Safety, the State would only have been able to get jurors'
traffic records for the last five years. The District Attorney further
testified that with respect to his practice that he intended to strike
all jurors who had training in the field of psychology, that he
overlooked the information obtained during the lengthy voir dire with
respect to juror No. 11, J.S. The District Attorney testified that
that was his mistake. The Court does not find that there was a
significant disparate treatment of members of the jury venire with the
same characteristics, or who answered a question in the same manner.
The Court finds that there was no proof that there
was a pattern of strikes against black jurors on this particular
venire. The State had 28 strikes available and struck 8 black
veniremembers and 20 white veniremembers, thus using 29% of its
strikes to strike black veniremembers.
The Court does not find that there was any specific
evidence of any past conduct of the State's attorney in using
peremptory challenges to strike all blacks from the jury venire.
Although the defendant asked the Court to take judicial notice of the
jury lists in several cases, the majority of which were not tried
before the undersigned judge, the undersigned judge has no knowledge
from the evidence presented at this hearing why the particular jurors
were chosen in these other cases, and does not find that mere juror
lists is proof of intentional past discriminatory practice on the part
of the District Attorney. In two of the cases submitted by defendant,
the State struck fewer black veniremembers than the defense,
(CC-87-137 and -138).
The Court further finds that the State's attorney's
questions and statements during voir dire were very detailed, and much
more than a desultory voir dire. The Court does not find from the
evidence that the State's questions directed to the challenged
veniremembers, both in the sense of the questions that were asked, and
in the sense of the questions that were not asked were calculated to
enable the State to strike the black veniremembers. The Court does not
find that there was a significant disparate treatment of members *1177
of the jury venire with the same characteristics, or who answered a
question in the same or similar manner. The Court does not find that
the voir dire examination of members of the venire on behalf of the
State was designed to provoke certain responses which were likely to
disqualify black veniremembers but not white veniremembers. The Court
does not find that there was any circumstantial evidence of intent on
the part of the District Attorney to strike the jurors for other
reasons than race-neutral reasons.
Although the State did strike all but one black
veniremember on the venire, the court finds from the evidence that the
percentage of black jurors on the venire was 13% and the percentage of
black jurors on the trial jury was 8%.
With respect to the testimony of David Thompson,
former investigator for the District Attorney, this Court finds that
said David Thompson was not the investigator for the District Attorney
at the time of the jury selection in this case. To the contrary, he
had been gone from his employment with the District's Attorney's
office for nearly two years (from August 1987 until May 1989). This
Court further finds that said investigator did little, if any, jury
investigation for the District Attorney's office. Based on the
testimony of Assistant District Attorney Ronald Hudson, this Court
simply finds that said witness' testimony was not believable. This
Court further finds that the District Attorney's office had in fact
explained the Batson decision to said David Thompson while he was one
of the investigators for the District Attorney's office. This Court
further finds that this District Attorney's office was the first in
the State to apply Batson to the defense at the trial level.
Based on all of the evidence presented in open
Court, this court finds that the prosecution's strikes were race-neutral,
this court specifically finding no pattern of strikes against black
jurors on this particular venire, no proof of any intentional past
conduct of the State's attorney in using peremptory challenges to
strike all blacks from the jury venire, no proof that the voir dire
was a desultory voir dire; and no disparate treatments of members of
the venire who gave similar answers or with respect to whom the State
had similar information.
This Court finds that the defendant in this case
had a public trial by an impartial jury as guaranteed by Amendment VI
of the Constitution of the United States of America. See also, Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.[2d] 69 (1986);
Powers v. Ohio [499 U.S. 400], 111 S.Ct. 1364 [113 L.Ed.2d 411]
(1990); Ex parte Branch, 526 So.2d 609 (Ala.1987); Harrell v. State,
555 So.2d 263, 268 (Ala.1989); Stephens v. State, 580 So.2d 11 (Ala.Civ.App.1990),
affirmed, 580 So.2d 26 (Ala.), cert. denied 502 U.S. 859, 112 S.Ct.
176 [116 L.Ed.2d 138] (1991); Bryant v. State, 516 So.2d 938 (Ala.Cr.App.1987);
Ex parte Bird and Warner, 594 So.2d 676 (1991); and Jackson v. State
[594 So.2d 1289] (Ala.Cr.App.1991).
Done and ORDERED this the 3rd day of December,
1991.
/s/Inge P. Johnson
Presiding Circuit Judge
APPENDIX II
State of Alabama Colbert County
In the Circuit Court of Colbert County, Alabama
John Forrest Parker, Appellant
vs.
State of Alabama
Case Nos. CR 89-838, CC 88-105.
Dec. 3, 1991.
AMENDED ORDER OF COURT ON IMPOSITION OF SENTENCE
The defendant in this case, John Forrest Parker,
was charged by indictment of the Grand Jury of the Circuit Court of
the 31st Judicial Circuit of Alabama in and for Colbert County,
Alabama, with the capital offense of Murder done for a pecuniary or
other valuable consideration. This charge is brought pursuant to the
provisions of the *1178 Code of Alabama, 1975, as amended, Section
13A-5-40(a)(7).
This case came on to be heard before the Court and
the jury of twelve men and women duly empaneled and sworn as required
by law. The jury after hearing the evidence and the Court's oral
charge as to the applicable law, including the lesser included
offenses of Conspiracy to Commit Murder, Assault in the First Degree,
Assault in the Second Degree, and Manslaughter, retired to deliberate
and upon the consideration of the law and evidence found the defendant
guilty of capital murder as charged in the indictment. The verdict was
unanimous in finding the defendant guilty of the capital offense as
charged in the indictment and not of any of the lesser included
offenses. The Court announced the jury's verdict on June 6, 1989, and
on June 7, 1989, commenced a sentence hearing before the same jury
pursuant to Section 13A-5-45 of the Code of Alabama of 1975, as
amended. After hearing the evidence during the punishment phase and
hearing, the jury was again charged as to the applicable law, advising
said jury that if mitigating circumstances outweighed the aggravating
circumstances then the punishment would be life imprisonment without
eligibility for parole, but if the aggravating circumstances
outweighed the mitigating circumstances, the verdict would be death.
After due deliberation, the jury returned a verdict affixing the
defendant's punishment at life imprisonment without parole, the
verdict being two (2) for death and ten (10) voting for life
imprisonment without parole. The makeup of the jury was as follows:
Nine (9) white men, one (1) black man, and two (2) white women. The
Court then announced the jury's verdict and set the 21st day of June,
1989, at 2:30 p.m. for further hearing as mandated by Section 13A-5-47
of the Code of Alabama of 1975, as amended. At said hearing, the
defendant, his trial counselors and the district attorney and chief
deputy district attorney were present and ready to proceed.
FINDINGS OF FACTS
The Court finds from the evidence introduced at
trial that the defendant, John Forrest Parker, and his friend, Kenneth
Eugene Smith, on the morning of March 18, 1988, went to the home of
Elizabeth Dorlene Sennett in rural Colbert County, Alabama, with the
intent to kill said Elizabeth Dorlene Sennett. The Court further finds
from said evidence that the day before, Billy Gray Williams had paid
the defendant the sum of One Hundred and No/100 ($100.00) Dollars to
use for purchasing a weapon to be used in said murder, but that the
defendant used that money for drugs to “shoot up.” The Court further
finds that the defendant was promised One Thousand and no/100
($1,000.00) Dollars for the killing by Billy Gray Williams, and that
he would be paid the balance when the job was done. The Court further
finds that Kenneth Eugene Smith and the defendant, John Forrest Parker,
drove to the residence of Elizabeth Dorlene Sennett in the defendant's
vehicle. The Court further finds that the defendant shot up 3 cc's of
Talwin on the way to said residence. The Court further finds that the
defendant had been unsuccessful in securing a gun for “the job” and
that he brought with him a survival knife. The Court further finds
that the defendant drove his vehicle to Elizabeth Sennett's home and
that Kenneth Eugene Smith sharpened the defendant's knife all the way
down there. The Court further finds that they parked the defendant's
car in the rear of the Sennett home. The court further finds that the
defendant and Mr. Smith asked Elizabeth Dorlene Sennett for permission
to use the bathroom, which she gave them. While in the bathroom, the
defendant put cotton socks on his hands. The Court further finds that
when he came out of the bathroom, the defendant jumped Elizabeth
Dorlene Sennett and started hitting her and together he and Kenneth
Eugene Smith killed her by hitting her with a galvanized pipe, holding
her down with a small blue chair and stabbing her while she was asking
them not to hurt her. The Court further finds that the defendant and
Kenneth Eugene Smith took a VCR and a stereo to make it look like a
burglary, which was in accordance with their plan, and that they also
broke the glass in the medicine cabinet to further this plan. The
Court further finds from the evidence that the defendant and Kenneth
Eugene Smith threw away the survival knife they had used for the
killing, and that the defendant threw the stereo off a bridge and
burned his clothes after the killing. The Court further finds that the
defendant was paid the additional Nine Hundred and no/100 ($900.00)
Dollars after the killing.
The Court considers the aggravating circumstances
as set out and enumerated in Section 13A-5-49 of the Code of Alabama,
as amended.
A. The Court finds from the evidence introduced at
the trial and reintroduced at the punishment hearing before the jury
that the defendant, John Forrest Parker, committed this murder for
pecuniary gain, namely, for the sum of One Thousand and no/100
($1,000.00) Dollars. The Court finds that said defendant was in fact
paid that sum for said intentional killing. The Court finds that this
is an aggravating circumstance pursuant to Section 13A-5-49(6) of the
Code of Alabama as amended, and the Court has considered said
aggravating circumstance.
The Court finds that the defendant was not a person
under sentence of imprisonment; therefore the Court does not consider
the aggravating circumstance listed in § 13A-5-49(1), Code of Alabama,
the Court finding that said aggravating circumstance does not exist in
this case.
The Court finds that the defendant was not
previously convicted of another capital offense, nor previously
convicted of a felony involving the use or threat of violence to the
person; therefore, the Court does not consider the aggravating
circumstance listed in § 13A-5-49(2), Code of Alabama, the Court
finding that said aggravating circumstance does not exist.
The Court finds that the defendant did not
knowingly create a great risk of death to many persons; therefore, the
Court does not consider the aggravating circumstance listed in §
13A-5-49(3), Code of Alabama, the Court finding that said aggravating
circumstance does not exist.
The Court finds that this offense was not committed
while the defendant was engaged or was an accomplice in the commission
of, or an attempt to commit, or flight after committing, or attempting
to commit rape, robbery, burglary or kidnapping; therefore, the Court
does not consider the aggravating circumstance listed in §
13A-5-49(4), Code of Alabama, the Court finding that said aggravating
circumstance does not exist.
The Court does not find that the offense was
committed for the purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody; therefore, the Court does not
consider the aggravating circumstance listed in § 13A-5-49(5), Code of
Alabama, the Court finding that said aggravating circumstance does not
exist.
The Court does not find that the offense was
committed to disrupt or hinder the lawful exercise of any governmental
function or the enforcement of laws; therefore, the Court does not
consider the aggravating circumstances listed in § 13A-5-49(7), Code
of Alabama, the Court finding that said aggravating circumstance does
not exist.
The Court does not find that the offense was
especially heinous, atrocious or cruel compared to other capital
offenses; therefore, the Court does not consider the aggravating
circumstance listed in § 13A-5-49(8), Code of Alabama, the Court
finding that said aggravating circumstance does not exist.
B. The Court now proceeds to consider the
mitigating circumstances as set out and enumerated in Section
13A-5-51, the Code of Alabama, as amended, and other mitigating
circumstances proved at the punishment hearing before the jury.
No additional evidence was presented either by the
State or by the defense at the sentence hearing before this Court.
Both the State and the defense counsel presented arguments.
1. The Court finds from the evidence that the
defendant has no significant history*1180 of prior criminal activity;
accordingly, the Court does consider this mitigating circumstance, as
listed in § 13A-5-51(1), Code of Alabama.
2. The Court finds that the capital offense was not
committed while the defendant was under the influence of extreme
mental or emotional disturbance; accordingly, the Court does not
consider the mitigating circumstances listed in § 13A-5-51(2), Code of
Alabama, the Court finding that said mitigating circumstances does not
exist in this case.
3. The Court finds from the evidence that the
victim was not a participant in the defendant's conduct or consented
to it; therefore, the Court finds that the mitigating circumstance
listed in § 13A-5-51(3) Code of Alabama, does not exist, and the Court
does not consider it.
4. The Court does not find from the evidence that
the defendant was an accomplice in a capital offense committed by
another person and that his participation was relatively minor. The
Court finds from the evidence in this case that defendant and Kenneth
Eugene Smith both killed the victim by hitting her with a galvanized
pipe, holding her down with a small blue chair and stabbing her while
she was asking them not to hurt her. Therefore, the Court finds that
the mitigating circumstance listed in § 13A-5-51(4), Code of Alabama,
does not exist, and the Court does not consider it.
5. The Court does not find from the evidence that
the defendant acted under extreme duress or under the substantial
domination of another person; therefore, the Court finds that the
mitigating circumstance listed in § 13A-5-51(5), Code of Alabama, does
not exist, and the Court does not consider it.
6. The Court does not find from the evidence that
the capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired; Although evidence was produced by defendant at
the sentencing hearing before the jury by Dr. James Crowder, clinical
psychologist, that Talwin would have impaired the defendant's judgment,
the Court also had evidence before it regarding the defendant's actual
actions during and after the murder of Mrs. Sennett which demonstrate
that his capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law was not
substantially impaired. The defendant's action in placing cotton socks
over his hands prior to the killing, his action in throwing away the
murder weapon after the killing, his attempting to make it look like a
burglary which had “gone bad,” his throwing away the stereo and
burning of his clothes is all evidence that the defendant at the time
in question appreciated that his conduct was criminal, and that he
might be apprehended, and for that reason did what he could to avoid
apprehension. Accordingly, the Court finds that the mitigating
circumstance listed in § 13A-5-51(6), Code of Alabama, does not exist,
and the Court does not consider it.
7. The Court does find that the defendant was 19
years old at the time of the commission of the crime, and therefore
finds that the mitigating circumstance listed in § 13A-5-51(7), Code
of Alabama does exist, and the Court does consider it.
8. The Court does find that the jury's
recommendation is a mitigating factor, and the Court has considered
said mitigating factor at this sentence hearing. However, the Jury was
allowed to hear an emotional appeal from the defendant's mother.
Although the defendant's mother attempted to blame the defendant's
drug addiction on the medication the defendant had taken as a child
for his condition diagnosed as “hyperactivity,” there was no proof
that such was the case. Dr. James Crowder testified that a child
taking ritalin as prescribed for treatment for hyperactivity would
have no withdrawal symptoms from said drug when such drug was
discontinued. The Court does not find that the defendant's problems
during his childhood is a mitigating factor. He was appropriately
treated for said condition according to the testimony of Dr. Crowder.
Furthermore, evidence was presented to the jury
that the husband of the victim was the instigator of the killing of
his wife, but the fact that the victim's husband conspired with the
defendant and his co-defendants to kill his wife does not make this
defendant any less culpable, and is not a mitigating factor.
9. The Court does find that the defendant's remorse
is a mitigating factor.
The Defendant was asked if had anything to say
before sentence was imposed on him and he said “No.”
The Court having considered the aggravating
circumstance as it was proven, that the murder was done for pecuniary
gain and the following mitigating circumstances, namely: the
defendant's age, the fact that defendant has no significant history of
prior criminal activity, his remorse and the jury recommended sentence
of life without parole and the Court weighing these, the Court finds
that the aggravating circumstance outweighs the mitigating
circumstances outlined above. Killing a human being, intentionally and
deliberately, for money, evidences a total and complete disregard for
the value and uniqueness of human life. The receipt of money by the
defendant both prior to the murder and after completing the murder
evidences that this total, deliberate and intentional disregard for
the value of human life was of a continuous nature, and not a mere
impulse. Accordingly the Court finds that there is a reasonable basis
for enhancing the jury's recommendation of sentence.
Therefore, on this the 21st day of June, 1989, with
the defendant, John Forrest Parker, being present, and having been
convicted by a jury of capital murder and the Court having weighed the
aggravating circumstance against the mitigating circumstances and
factors and the Court having found that the aggravating circumstance
outweighs the mitigating circumstances and factors;
It is therefore, ORDERED, ADJUDGED and DECREED by
the Court, and it is the judgment of this Court and its sentence of
law that the defendant, John Forrest Parker, suffer death by
electrocution. The Sheriff of Colbert County, Alabama, is directed to
deliver John Forrest Parker to the custody of the Director of the
Department of Corrections and the designated executioner shall, at the
proper place for the execution of one sentenced to suffer death by
electrocution, cause a current of electricity of sufficient intensity
to cause death in the application and continuance of such current to
pass through the said John Forrest Parker until said John Forrest
Parker is dead.
Mr. Parker, may God have mercy on you.
Done this the 3rd day of December, 1991.
/s/Inge P. Johnson
Presiding Circuit Judge
Parker v. Allen, 565 F.3d 1258 (11th Cir.
2009). (Habeas)
Background: Following affirmance, 610 So.2d 1181,
of state capital murder conviction and sentence of death, and
exhaustion of state postconviction remedies, state prison inmate
sought federal habeas relief. The United States District Court for the
Northern District of Alabama, No. 00-01846-CV-SLB-PWG, Sharon Lovelace
Blackburn, Chief Judge, denied petition, and inmate appealed.
Holdings: The Court of Appeals, Birch, Circuit
Judge, held that: (1) state court did not unreasonably apply federal
law by finding that facially race-neutral reasons for juror strikes
were not pretextual; (2) prosecutor's improper vouching for state
witnesses and advocacy of death penalty in closing argument was not
prejudicial; (3) state did not commit Brady violations by failing to
disclose information about prosecution witness; (4) no ineffective
assistance of counsel was shown from defense counsel's failure to
present expert witnesses; (5) police had probable cause to arrest
defendant; and (6) no ineffective assistance of counsel was shown from
failure to argue inadmissibility of confession. Affirmed. Edmondson,
Chief Judge, concurred in the result.
BIRCH, Circuit Judge:
Petitioner-appellant John Forrest Parker appeals
the district court's judgment dismissing his petition for writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254 and denying him
relief. Parker sought a vacation of his 1988 conviction for capital
murder and his death sentence. After the district court denied
Parker's Fed.R.Civ.P. 59 motion for reconsideration, Parker appealed
and the district court issued a certificate of appealability on five
issues. We conclude that the district court correctly denied habeas
relief and AFFIRM.
I. BACKGROUND
In March 1988, Charles Sennett contracted with one
of his tenants, Billy Gray Williams, to murder his wife, Elizabeth
Dorlene Sennett (“Dorlene”), for $3000. Parker v. State, 587 So.2d
1072, 1078 (Ala.Crim.App.1991) ( “ Parker I”).FN1 Williams, in turn,
hired John Parker and Kenneth Eugene Smith for $1000 each to commit
the murder. Williams gave Parker $100 to purchase a weapon on 17 March
1988, and promised to pay him the balance when the job was completed.
Instead of buying a weapon, Parker used the $100 for drugs and
injected 3 cubic centimeters of Talwin, a narcotic analgesic (painkiller),
while en route to the Sennetts' residence on 18 March. Parker drove
his vehicle to the Sennetts' residence while Smith, who was in the
passenger seat, sharpened Parker's survival knife. Parker parked his
car behind the Sennetts' home, told Dorlene that her husband had given
them permission to look at the property as a hunting site and, upon
receiving Dorlene's approval, walked into a wooded area with Smith.
They later returned to the house and received permission from Dorlene
to use her bathroom. While in the bathroom, Parker put cotton socks
onto his hands. He then exited the bathroom, jumped Dorlene, and began
hitting her. Parker and Smith hit Dorlene with a galvanized pipe and
stabbed her while she pled with them not to hurt her. Consistent with
their plan, they broke the glass in the medicine cabinet and took a
stereo and video cassette recorder (VCR) to make the assault look like
it was done during a burglary. Parker later burned his clothes and
threw the stereo off a bridge, and he and Smith threw away the knife
that they used. Parker subsequently received the additional $900 for
the murder. Parker v. State, 610 So.2d 1171, App. II at 1178-79 (Ala.Crim.App.1992)
( “Parker II”); In re Parker, 610 So.2d 1181, 1184-85 (Ala.1992) (“
Parker III”).
FN1. The record in this case consists of the
district court filings and the state court filings, which were filed
in this record as an exhibit to R1-17. The state court filings are
compiled in two sets of volumes, supplements and other documents.
Volumes 1-14 are the record from Parker's direct appeal; the volumes
from these are designated in this opinion as “Vol.” Volumes 1-16 are
the record from Parker's post-conviction proceedings; these volumes
are designated in this opinion as “PC Vol.” Citations to the state
court exhibits will be hereafter indicated as “Exh. Vol.” and “Exh. PC
Vol.”
When Sennett arrived home, he found his house
ransacked and Dorlene close to death, and called Colbert County
Sheriff's Investigator Ronnie May at 11:44 A.M. May dispatched a
rescue squad and sheriff's deputies to the Sennetts' home. May and
another deputy arrived at the Sennetts' home about 12:05 P.M., and the
rescue squad arrived soon thereafter. Dorlene was transported to the
hospital, and seen by Dr. David Parks McKinley. Resuscitation efforts
failed and Dorlene was declared dead as a result of cardiac arrest and
exsanguination. An examination of her body revealed multiple stab
wounds to the right side of her chest, the right side of her neck, the
base of her neck, forehead, nose, and scalp, and contusions on her
nose and forehead. Hairs found at the crime scene in a cap located
near Dorlene's body were consistent with Smith's known hair sample,
and on an afghan that had been wrapped around Dorlene's body were
consistent with fibers later taken from Parker's knife. Parker I, 587
So.2d at 1089. The VCR taken from the Sennetts' house was found inside
Smith's residence. Parker I, 587 So.2d at 1090.
In April 1988, Parker was indicted for the capital
murder of Dorlene by beating and stabbing her with a knife for the
pecuniary consideration of $1000 in violation Ala.Code 13A-5-40.FN2 At
trial, he was found guilty by a jury; the jury recommended a sentence
of life imprisonment without parole. The sentencing judge, however,
overrode the jury and sentenced Parker to death on 21 June 1989.FN3
See Parker I, 587 So.2d at 1076, 1100. On appeal, the case was
remanded for an evidentiary hearing on Parker's Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) claim and for the
district court to reweigh and make new findings regarding the
mitigating and aggravating circumstances.FN4 Parker I, 587 So.2d at
1100. Following an evidentiary hearing on remand, the trial judge
found that the prosecution had not violated Batson by using its
peremptory strikes to remove eight black venire members. Parker II,
610 So.2d at 1172, 1177. The trial judge also found that the
aggravating circumstance of murder for pecuniary gain outweighed the
mitigating circumstances, including Parker's lack of a prior
significant criminal history, age at the time of the offense,
demonstration of remorse, and the jury's recommendation of life
without parole. Id. at 1172, 1179-81. Parker's conviction and sentence
were affirmed by the appellate court and the Alabama Supreme Court.
See id. at 1173; In re Parker, 610 So.2d 1181, 1187 (1992) (“ Parker
III”). Parker's petition for writ of certiorari was denied. See Parker
v. Alabama, 509 U.S. 929, 113 S.Ct. 3053, 125 L.Ed.2d 737 (1993) (“
Parker IV”).
FN2. The offense of capital murder includes “Murder
done for a pecuniary or other valuable consideration or pursuant to a
contract or for hire.” Ala.Code § 13A-5-40.
Charles Sennett, a Church of Christ minister,
committed suicide on 25 March 1988, seven days after Dorlene died.
Parker I, 587 So.2d at 1078. Williams was convicted of capital murder
and sentenced to life imprisonment without the possibility of parole.
Williams v. State, 565 So.2d 1233 (Ala.Crim.App.), cert. denied
(Ala.1990) (No. 89-1184). Smith was convicted of capital murder and
sentenced to death. Smith v. State, 908 So.2d 273 (Ala.Crim.App.2000),
cert. denied, 546 U.S. 928, 126 S.Ct. 148, 163 L.Ed.2d 277 (2005).
FN3. Under Ala.Code § 13A-5-47(e), the jury's sentencing
recommendation is to be given consideration but “is not binding upon
the court.”
FN4. On appeal, Parker raised twenty-four issues,
including: (1) the prosecutor's use of his peremptory strikes in
violation of Batson; (2) the prosecutor's failure to disclose a
witness's other convictions and the favorable treatment he received in
exchange for his testimony in violation of Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (3) the illegality of the
warrantless search of his home; (4) the involuntariness of his post-arrest
statement; (5) improper prosecutorial closing arguments; and (6) his
court-appointed counsel's lack of required experience. Parker I, 587
So.2d at 1076, 1078, 1082-85, l087-93, 1095-98, 1100.
Parker moved for post-conviction relief under
Alabama Rule of Criminal Procedure 32 in 1994, and filed an amended
petition in 1996.FN5 Following an evidentiary hearing, the state trial
court denied the petition. The denial was affirmed on appeal, Parker
v. State, 768 So.2d 1020 (Ala.Crim.App.1999) (“ Parker V”), and
Parker's petition for writ of certiorari was denied, Ex Parte Parker,
780 So.2d 811 (Ala.1999) (“ Parker VI”).
FN5. In his initial and amended Rule 32 petitions,
Parker raised the eighteen issues, including: (1) ineffective
assistance of counsel during the pretrial investigation and
proceedings, jury selection, trial, post-trial motions, sentencing,
and on appeal; (2) the inadmissibility of Parker's statements made
during and after his arrest; (3) unconstitutionality of Parker's
statements taken while he was under the influence of alcohol and drugs;
(4) the trial court's failure to suppress Parker's statements and to
allow their admission as trial evidence; (5) the trial court's
erroneous rulings on his objections during the suppression hearing and
the trial; and (6) prosecutorial misconduct.
Parker filed a timely petition for writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, in 2000 and amended the petition
in 2001.FN6 The district court denied the petition and denied
reconsideration. Following Parker's notice of appeal, the district
court granted a certificate of appealability on the following issues:
(1) whether jurors were excluded by the prosecutor on the basis of
race, contrary to clearly established federal law and in violation of
the Sixth, Eighth, and Fourteenth Amendments; (2) whether the
prosecutor's improper closing arguments denied Parker due process, a
fair trial, and a reliable sentencing proceeding in violation of the
Sixth, Eighth and Fourteenth Amendments; (3) whether the state's
failure to disclose information relevant to a witness's testimony was
a violation of Brady and the Sixth, Eighth, and Fourteenth Amendments;
(4) whether Parker received ineffective assistance of counsel at trial
in violation of his rights under the Sixth, Eighth, and Fourteenth
Amendments; and (5) whether Parker's statement and other evidence were
obtained in violation of the Fourth Amendment.
FN6. In both his original and amended habeas
petitions, Parker raised the following issues: (1) unconstitutional
exclusion of jurors on the basis of race and gender in violation of
Batson; (2) improper prosecutorial closing argument; (3) trial court's
erroneous jury instruction on reasonable doubt; (4) prosecutor's Brady
violation concerning a witness; (5) ineffective assistance of trial
counsel during the suppression hearing, pretrial investigation, jury
selection, trial, closing argument, jury charge, sentencing phase, and
in their motions to withdraw; (6) denial of due process because of
medication; (7) trial court's failure to strike prejudiced jurors; (8)
trial court's override of the jury verdict; (9) trial court's
admission of Parker's statement made at the time of his illegal arrest;
(10) trial court's denial of Parker's motion for change of venue; (11)
trial court's failure to recuse; (12) trial court's unconstitutional
admission of Parker's statement; (13) trial court's failure to
instruct on lesser included offenses including intentional and
reckless murder; and (14) trial court's unconstitutional testimony. In
his amended petition, Parker raised the following additional issues:
(15) the trial court erred on remand for sentencing by failing to
provide Parker with an opportunity to present evidence, argue, or
speak; (16) his arrest was illegal based on the officers' lack of
jurisdiction; (17) his statements were the result of illegal and
unconstitutional duress; and (18) the indicting grand jury was
selected in a discriminatory and unconstitutional manner.
II. DISCUSSION
We review the denial of a petition for writ of
habeas corpus de novo, but are limited in our review of every issue
decided in the state courts by a “ ‘general framework of substantial
deference.’ ” Crowe v. Hall, 490 F.3d 840, 844 (11th Cir.2007) (quoting
Diaz v. Sec'y of the Dep't of Corr., 402 F.3d 1136, 1141 (11th
Cir.2005)). We will not, therefore, disturb the decisions of the
Alabama courts unless those decisions are “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or were “based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d).
Under § 2254(d)(1), a state court decision is
“contrary to” clearly established federal law if the state court
either (1) applied a rule that contradicts the governing law as set
forth by the Supreme Court or (2) arrived at a different result from
the Supreme Court when presented with “materially indistinguishable
facts.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). A state
court decision involves an “unreasonable application” of clearly
established Supreme Court law if the law is “applied ... to the facts
... in an objectively unreasonable manner.” Woodford v. Visciotti, 537
U.S. 19, 25, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002).
A. Juror Exclusion Based on Race
Parker argues that, over his objection, the
prosecution struck eight of nine qualified black venire members. He
contends that the trial court's finding on remand that the prosecutor
struck the jurors on facially-neutral grounds is not supported by the
record because eight of the seated jurors had exactly the same
characteristics that the prosecution identified as the bases for
excluding four black venire members. He contends that the
prosecution's explanations for striking the venire members and for
failing to strike other similarly situated white venire members are
inconsistent with its failure to question the white venire members
about their traffic violations and personal and family criminal
histories.
The prosecution exercised peremptory strikes
against eight of the nine black venire members. The stricken black
venire members included Juror 3, Sheila Armstead; Juror 21, Thykle L.
Coman; Juror 25, Jeffrey S. Davis; Juror 67, Willie M. Mayes; Juror
77, Cynthia Montgomery; Juror 83, Annie O. Owes; Juror 120, Eugene L.
Watkins; and Juror 121, Mary A. Webb. Black venire member Carter
Triplett, Juror 113, was selected for the jury.
During voir dire, none of the black jurors
responded positively when asked whether they believed that the death
penalty should be applied in the case of a murder. The prosecution
then used 26 of its 28 strikes to strike individuals who did not
answer favorably toward the death penalty. The reasons provided by the
prosecution for exercising these strikes included (1) Coman's general
opposition to the death penalty;FN7 (2) the belief that ComanFN8 and
Webb,FN9 who had taken psychology classes or training, would give
“undue emphasis” to a defense psychologist's testimony, R1-17, Exh.
Vol. 3 at 402-04; (3) *1268 the belief that Armstead,FN10 Coman,FN11
Montgomery,FN12 and Owes,FN13 who each were related to someone who had
been charged with a crime, might be “prejudice[d] against the State,”
Exh. Evid. HR at id. at 17-18, 20-24, 32-36, 38-40; and (4) the belief
that Watkins,FN14 who had a “series of traffic offenses” and “arrests,”
might think “that the State ... [was] picking on him,” “not be open
minded ... to the testimony of law enforcement officers,” and have an
inability “to follow the law.” Id. at 24-25, 40-41. Davis indicated
that, if the jury was sequestered, he would have problems staying
overnight.FN15 Mayes worked with members of co-defendant Williams'
family and had overheard conversations regarding the case. [ Id. at
21-22.]
FN7. Coman indicated that she was opposed to the
death penalty under any circumstance and would always prefer a
sentence of life without parole to death. FN8. Coman also knew
Sennett's girlfriend and possible defense witness, Doris Tidwell. FN9.
Webb had taken a psychology course during college. FN10. Armstead's
mother, Elsie Armstead, was under prosecution in Colbert County for
theft of property. FN11. Coman's relative, Robert Coman, had a drug
conviction in Colbert County. FN12. Montgomery's cousins were
prosecuted on drug charges “factually related” to Parker's case. The
prosecutor also thought that Montgomery had an out-of-wedlock child
and might be sympathetic to Parker, who also had an out-of-wedlock
child. FN13. Owe's brother-in-law, Williams Owes, had a Colbert County
arrest warrant pending for a drug charge at the time of the trial.
Owes's husband, Thomas Owes, was a defendant in a civil forfeiture
case filed by Alabama and the prosecution believed that this would
prejudice her against them. She also knew defense attorney Gene Hamby.
FN14. Although the prosecution conceded that Watkins's five traffic
offenses were “minor” and insufficient to justify a strike, they
argued that the offenses indicated a pattern. The prosecutor did not
strike anyone with a single speeding offense. FN15. Davis said that he
did not want to serve on the jury.
White venire members were stricken for some of the
same reasons. Juror 92, Betty Rickard, was stricken for her general
opposition to the death penalty; Jurors 9, Rebecca Barr; 58, Sharon
Landers; 63, Rebecca Livingston; 82, Marshal Newman; Rickard; and 129,
Marty Willingham, were stricken because they had prior training or
course-work in psychology; and Willingham had a record of minor
traffic offenses. Jurors 40, Pamela Hendon; 53, Jenaine Johnson; and
Jennifer Razor said that it would be difficult for them to stay
overnight. Juror 68, Birdie McCarley was stricken because she knew
members of Parker's family.
Eight of the eleven white seated jurors were,
however, related to someone who had been convicted of a felony, had
taken a psychology course, knew one of the defense attorneys, or had
been convicted of more than one traffic offense. Seated white juror
Joni Simpson admitted that she had taken a course in psychology. The
prosecutor admitted that he erred in not striking Simpson because he
intended to strike all of the venire members who had taken psychology
classes and his note indicated that he had. Simpson and seated juror
Gary Highfield knew defense attorney, Gene Hamby, and seated juror
Teddy Roe Mansell knew defense attorney H. Thomas Heflin, Jr.'s law
partner, who had represented Mansell's ex-wife during child support
contempt proceedings. Seated jurors Highfield,FN16 Mansell,FN17 Mike
Quillen,FN18 Williams Glenn Pettus,FN19 Simpson,FN20 *1269 and
alternate juror Johnny O. Miller, all had traffic offense records.FN21
Many of the seated jurors' traffic offenses occurred outside of
Colbert County, and Quillen's traffic offenses occurred in Tennessee.
Highfield, Mansell, Pettus and Simpson had only one traffic ticket
each from Colbert County. Mansell had been prosecuted for child
support contempt proceedings. Seated jurors James Ayers, Highfield,
LaDecca Holt, Lucy Lowry, Noel Gene Morris, and Quillen were related
to someone who had a felony conviction. The convictions of the family
members of Ayers, Lowry, and Morris were outside of the five year
scope of the prosecutor's investigation.FN22 The convictions of the
family members of Highfield, Lowry, Morris, and Quillen occurred
outside of Colbert County, Alabama.FN23 LeDecca Holt's “uncle by
marriage,” Curtis Sheffield, had a felony conviction in Colbert
County.FN24 Exh. Evid. HR at 64.
FN16. Highfield said that, at the time of the trial,
he had at least two speeding convictions. FN17. At the time of the
trial, Mansell had two speeding convictions. FN18. Quillen only
remembered having had one traffic ticket before the trial. FN19.
Pettus had at least two prior tickets for driving while intoxicated.
FN20. Simpson testified that, at the time of the trial, she had
received three speeding tickets and one reckless driving ticket. FN21.
White venire members Wiley K. Arnold, Beyersdorf, Freeman, Goskey, and
Murphrey had traffic offense records but were excused. FN22. Ayers'
uncle's conviction occurred at least 12 years earlier, Lowry's uncle's
conviction about 9 years earlier, and Morris's brother's conviction
about 25 years earlier. FN23. Highfield's relative's conviction was in
Madison County, Alabama; Lowry's uncle's conviction was in Florida;
Morris's brother's conviction was in Lawrence County, Alabama; and
Quillen's cousin's conviction was in Franklin County, Alabama. FN24.
The record does not indicate when Sheffield's conviction occurred.
The prosecution used 28 percent of its total
strikes to strike black venire members, who composed about seven
percent of the total venire and eight percent of the seated jury.
Acknowledging that black jurors were struck, the prosecution argued
that “race had nothing to do” with the strikes because they were not
“paying attention to race.” Id. at 27. During its first twelve strikes,
the prosecution used eight strikes against blacks. In making the
strikes, the prosecution relied on information regarding repeat
traffic violations and criminal prosecutions of the jurors or their
families that its investigator had obtained and did not question the
jurors if that information indicated a potential problem that might
lead to bias. The investigator's search spanned five years, which was
the amount of time that the prosecuting district attorney had been in
office and that the records were retained in the county clerk's office.
Traffic investigations were performed on any venire members who were
“thought” to have a history of traffic offenses based on the
prosecution's investigator's interviews with law enforcement officers.
Id. at 41. The prosecutor explained that he did not question the
venire members regarding information that he had obtained from their
individual voir dire questionnaires or his investigator because he did
not want to embarrass them in front of the other venire members. He
acknowledged that, although individual voir dires were available, he
did not use them. He said that he had no knowledge of Holt's family
member's crime and “missed” it during the investigation. Id. at 90.
On direct appeal, the state appellate court
affirmed the trial judge's “commendable thoroughness and ...
conscientiousness” in making findings and concluding that Batson was
not violated. Parker II, 610 So.2d at 1172. The state trial court
compared each of the reasons for the prosecutor's strikes, noted the
prosecution's practice regarding its investigatory methods, and
commented that, even if the prosecution had done a state-wide
investigation of the venire members' traffic records, it would only
have been able to get records for five years. Id. at 1173-76. Based on
*1270 the analysis of the strikes and investigatory methods, the trial
court “d[id] not find that there was a significant disparate treatment
of [the venire-members] with the same characteristics.” Id. at 1176.
The district court found that the prosecution's
failure to strike the white jurors with traffic convictions or family
member convictions that occurred outside of Colbert County or more
than five years earlier was not inconsistent with its striking of
black jurors who had traffic convictions and family member convictions
that occurred within Colbert County within the last five years. It
found that the trial court's conclusion satisfied Batson and that its
decision was neither contrary to nor involved an unreasonable
application of the law.
Because it is constitutionally permissible for the
prosecutor to retain jurors who are “death qualified” and to strike
jurors who state that they could not impose the death penalty under
any circumstance, Lockhart v. McCree, 476 U.S. 162, 165-67, 175-77,
106 S.Ct. 1758, 1760-62, 1766-67, 90 L.Ed.2d 137 (1986), the
prosecution legitimately struck Coman.
In Batson, the Supreme Court held it
unconstitutional for the prosecution to challenge potential jurors
based solely on their race or on the assumption that because of their
race they will be unable to consider the case impartially. 476 U.S. at
89, 106 S.Ct. at 1719. A defendant may raise the necessary inference
of “purposeful discrimination in selection of the petit jury” based
“solely on evidence concerning the prosecutor's exercise of peremptory
challenges” during the trial. Id. at 96, 106 S.Ct. at 1723.
[T]he defendant first must show that he is a member
of a cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the
defendant's race. Second, the defendant is entitled to rely on the [undisputed]
fact ... that peremptory challenges constitute a jury selection
practice that permits those to discriminate who are of a mind to
discriminate. Finally, the defendant must show that these facts and
any other relevant circumstances raise an inference that the
prosecutor used that practice to exclude the veniremen from the petit
jury on account of their race. Id., 106 S.Ct. at 1723 (internal
citations and quotation marks omitted). It is not necessary to show
that all or even a majority of the prosecutor's strikes were
discriminatory; any single strike demonstrated to result from
purposeful discrimination is sufficient. See McNair v. Campbell, 416
F.3d 1291, 1311 (11th Cir.2005). In Powers v. Ohio, 499 U.S. 400, 402,
111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991), Batson claims were
extended to defendants regardless of whether they share the same race
as the struck jurors.
Once the defendant makes a prima facie showing, the
burden shifts to the prosecution to explain, in clearly and reasonably
specific terms, the legitimate race-neutral reasons for striking the
jurors in question. Batson, 476 U.S. at 97, 98 n. 20, 106 S.Ct. at
1723, 1724 n. 20. The court must then confront the “decisive question”
and evaluate the credibility of the prosecution's explanation,
Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114
L.Ed.2d 395 (1991), “in light of all evidence with a bearing on it.”
Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 2331, 162 L.Ed.2d
196 (2005). Finally, the court must determine whether the defendant
has established purposeful discrimination. Batson, 476 U.S. at 98, 106
S.Ct. at 1724.
The reasons stated by the prosecutor provide the
only reasons on which the prosecutor's credibility is to be judged.
United States v. Houston, 456 F.3d 1328, 1335 (11th Cir.2006). The
credibility of the prosecution's explanation is to be evaluated
considering the “totality of the relevant facts,” including whether
members of a race were disproportionately excluded. Hernandez, 500 U.S.
at 363, 111 S.Ct. at 1868 (quotation marks and citation omitted).
Questions arise regarding the credibility of the explanation and the
possibility that the explanation is pretextual (1) when the
prosecutor's explanation for a strike is equally applicable to jurors
of a different race who have not been stricken, Caldwell v. Maloney,
159 F.3d 639, 651 (1st Cir.1998); (2) upon a comparative analysis of
the jurors struck and those who remained, Turner v. Marshall, 121 F.3d
1248, 1251-52 (9th Cir.1997), including the attributes of the white
and black venire members, Houston, 456 F.3d at 1338; (3) or when the
prosecution fails to engage in a meaningful voir dire examination on a
subject that it alleges it is concerned, Miller-El, 545 U.S. at 246,
125 S.Ct. at 2328. Evidence of purposeful discrimination may be shown
through side-by-side comparisons confirming that the reasons for
striking a black panelist also apply to similar non-black panelists
who were permitted to serve. See id. at 241, 125 S.Ct. at 2325. A
prosecutor's reasonable explanation for objecting to a black panelist
based on his or her opinions or comments may be undercut by the
prosecution's failure to object to other white panelists who expressed
similar views, and may be evidence of pretext. Id. at 248, 125 S.Ct.
at 2329-30. The prosecutor's failure to strike similarly situated
jurors is not pretextual, however, “where there are relevant
differences between the struck jurors and the comparator jurors.”
United States v. Novaton, 271 F.3d 968, 1004 (11th Cir.2001). The
prosecutor's explanation “does not demand an explanation that is
persuasive, or even plausible; so long as the reason is not inherently
discriminatory, it suffices.” Rice v. Collins, 546 U.S. 333, 338, 126
S.Ct. 969, 973-74, 163 L.Ed.2d 824 (2006) (quotation marks and
citation omitted). Neither a prosecutor's mistaken belief about a
juror nor failure to ask a voir dire question provides “clear and
convincing” evidence of pretext. McNair, 416 F.3d at 1311-12.
If the fact-finder determines that the prosecutor's
race-neutral explanations are true, the petitioner may obtain relief
only by showing that the state court's conclusion was an unreasonable
determination of the facts in light of the evidence presented during
the state proceedings. Miller El, 545 U.S. at 240, 125 S.Ct. at 2325.
Consistent with § 2254(e)(1), we presume the state court's factual
findings to be correct unless the petitioner rebuts that presumption
with clear and convincing evidence. Id. “The standard is demanding but
not insatiable; ... deference does not by definition preclude relief.”
Id. (citation and internal punctuation omitted). We cannot, however,
substitute our evaluation of the record for that of the state trial
court, as we presume the state court's factual findings to be correct,
and cannot grant a habeas petition unless the state court's
credibility findings regarding the prosecutor's race-neutral
explanations for the Batson challenge are “unreasonable ... in light
of the evidence presented in the state court.” Rice, 546 U.S. at
337-39, 126 S.Ct. at 973-74.
Based on the Alabama Court of Criminal Appeals'
remand for the prosecution to offer race-neutral reasons for striking
the jurors, we assume that a prima facie showing under Batson was
made. See Parker I, 587 So.2d at 1077; Novaton, 271 F.3d at 1003 (assuming
a prima facie showing when the district court required *1272 the
prosecution to offer race-neutral reasons for its strikes). Based on
the state court's application of the law, acceptance of the
prosecutor's stated reasons for his strikes, and consideration of the
differences in the situations of the stricken and seated jurors, the
district court did not err in finding that the state court reasonably
applied Batson and that Parker failed to prove “purposeful
discrimination” under Batson.
B. Improper Closing Arguments
Parker argues that the Alabama Court of Criminal
Appeals' decision regarding the prosecutor's vouching for witnesses
during the guilt-phase closing argument and arguing that the death
penalty should be applied because of uncharged criminal behavior is an
unreasonable application of the law and an unreasonable application of
the facts. Alabama concedes that the prosecutor's arguments regarding
two of the witnesses were improper, but maintains that the other
statements were not improper and that none of the statements rise to
the level of a violation of due process.
During the guilt-phase closing argument, the
prosecutor summarized the evidence against Parker and commented about
the testimony of three of Alabama's witnesses, Donald Buckman,
Investigator May, and Dr. McKinley. Regarding Buckman's testimony, the
prosecutor “assure[d]” the jury that Buckman “did not have anything
against John Parker.” Exh. Vol. 8 at 1576. Regarding May's testimony,
the prosecutor stated:
I've known Ronnie May for a long time and worked
with him and, of course, when we put a witness on the witness stand we
vouch for their credibility just as the defense does when they call a
witness. But I can assure you right now that what Ronnie May testified
to you about-about anything, but particularly about the statement that
I'm, talking about right now that was given to him on March the 31st
by Mr. Parker. I can assure you he told you the truth, what was told
him by Mr. Parker. And I don't for any one minute think that any of
y'all think he would get up and make it up or fabricate it or anything
like that. But I can assure you, ladies and gentlemen, what he told
you is the truth with regard to that statement. Id. at 1575. Regarding
McKinley, the prosecutor asked the jury to consider:
Who is best qualified to make the judgment about
the potential murder weapon? ... [T]he forensic pathologist who did
the autopsy who made exacting measurements about the wounds and
examined those wounds? Whose job it was to determine specifically what
the cause of death was and to determine, if possible, what type of
weapon might have been used and some possible characteristics for that
weapon? ... [O]r is it the doctor who worked on the person in the
emergency room and was primarily trying to save her life .... I'm not
try[ing] to in anyway run down Dr. McKinley. I know Dr. McKinley. He's
a personal acquaintance of mine and I can assure he's ... giving you
his opinion, his best opinion, but again I say to you; who is best
qualified to give that opinion? Id. at 1581-82.
In his final closing argument, the prosecutor
explained to the jury that they were “the most important part of this
whole case” because their function was to listen to the evidence and
decide what the truth is. You decide who that has testified to you is
telling the truth, who is not telling the truth, who is being evasive
with you and you ultimately decide the true facts in the case upon
which your verdict is to be based .... Exh. Vol. 9 at 1608.
The prosecutor, however, then continued: There is
no such thing as a case that you couldn't look at long enough and hard
enough and find some kind of little inconsistency in the testimony and
the reason for that is, I submit to you at least from the State's
witnesses they were trying very hard to tell you the truth and the
truth as they saw it .... [W]e vouch for the credibility of those
witnesses by putting them on the stand and I submit to you that
they've told the truth .... Id. at 1611.
During the jury instructions, the trial judge
instructed the jury that they were: the sole judges as to the weight
that should be give to all of the testimony in the case ... [t]he
jury's role is to determine the facts.
You ladies and gentlemen of the jury[ ] take the
testimony of the witnesses, together with all proper and reasonable
inferences therefrom, apply your common sense, and in an impartial and
honest way[,] determine what you believe to be the truth. You should
weigh all of the evidence and ... give it just such weight as you
think it is entitled to receive. In doing so[,] you may take into
consideration any interest which any witness might have shown to have
in the outcome of this case. If you believe that any material part of
the evidence of any witness was willfully false, you may disregard all
of the testimony of such witness. Id. at 1655-56.
In determining what the true facts are in the case,
you are limited to the evidence that has been presented from the
witness stand as opposed to matters that have been stated by the
attorneys in the course of the trial. What the attorneys have said ...
is not evidence in the case. What they have argued to you ... is not
evidence. Id. at 1641-42.
The Alabama Court of Criminal Appeals found that
the prosecutor's statements were “improper attempts to bolster
witnesses by vouching for their credibility.” Parker I, 587 So.2d at
1094. It concluded, however, that the comments, “although clearly
erroneous, do not undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice.” Id. (citation and internal
quotations omitted). In reaching that conclusion, it viewed the
prosecutor's comments in the context of the entire trial and noted
that (1) during the defense closing argument, Parker's attorney did
not contend that Parker's confession was false, but conceded that
Parker admitted that he was at the crime scene and had gone there to
commit a burglary, and (2) any prejudice was cured by the trial
judge's extensive cautionary instructions to the jury that they were
only to consider the evidence and not the attorneys' comments. Id. at
1094-95.
During a trial, counsel have a duty to refrain from
commenting on their personal views on a defendant's guilt and the
evidence. United States v. Young, 470 U.S. 1, 7, 9, 105 S.Ct. 1038,
1042-43, 84 L.Ed.2d 1 (1985). A prosecutor's comments during a closing
argument are evaluated to determine whether the comments so unfairly
affected the trial as to deny the defendant due process, Darden v.
Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2474-71, 91 L.Ed.2d 144
(1986), when considered “in the context of the entire trial in light
of any curative instructions.” United States v. Abraham, 386 F.3d
1033, 1036 (11th Cir.2004) (per curiam) (quotation *1274 marks and
citation omitted). Due process is denied “when there is a reasonable
probability,” or “a probability sufficient to undermine confidence in
the outcome,” that, but for the improper remarks, “the outcome of the
proceeding would have been different.” United States v. Eyster, 948
F.2d 1196, 1206-07 (11th Cir.1991) (citations and internal punctuation
omitted). The prosecutor's comments must both (1) be improper and (2)
“prejudicially affect the substantial rights of the defendant.” United
States v. Thompson, 422 F.3d 1285, 1297 (11th Cir.2005). A
prosecutor's comments constitute improper “vouching” if they are
“based on the government's reputation or allude to evidence not
formally before the jury.” Eyster, 948 F.2d at 1206. Although improper
vouching is grounds for reversal, it may be cured if the remarks are
not “substantially prejudicial” and any lingering prejudice is
remedied by a careful cautionary instruction. United States v.
Sarmiento, 744 F.2d 755, 762-65 (11th Cir.1984).
As the Supreme Court of Alabama correctly noted,
Parker's strategy was to argue that he assaulted but did not murder
Dorlene. Parker III, 610 So.2d at 1184. During his closing arguments,
Parker's attorney used Parker's statement to support that strategy. He
was thus not prejudiced by any enhanced credibility given to the
testimony of Buckman or May since their testimony that Parker had gone
to the Sennetts' residence was consistent with this strategy and would
not have adversely affected the jury verdict. He was also not
prejudiced by the prosecutor's reference to his personal acquaintance
with McKinley; the prosecutor based his comments on a comparison of
McKinley's and the forensic pathologist's qualifications regarding
their thoughts on the murder weapon and was based on facts in evidence.
Further, any enhanced credibility given to McKinley's testimony was
consistent with Parker's witness's testimony that he did not believe
that Parker's knife was the murder weapon.
Buckman testified that Parker and Smith drove to
his house in Parker's car on the morning of the murder and that Smith
asked where he could find a gun. May testified that Parker admitted in
his statement that, on the day of the murder, he and Smith drove to
the Sennetts' home in his car, jumped Dorlene, held her down with a
chair, and hit her with a galvanized pipe; Smith did all of the
stabbing; and they stole the Sennetts' VCR and stereo and broke some
glassware to provide the appearance of a robbery. May also testified
that Parker did not know who covered Dorlene, did not know the number
of times she was stabbed or the location of the wounds, never stated
that she was dead when they left, and denied turning over a china
cabinet that the police found turned over in the room where Dorlene
was found.
McKinley, Dorlene's emergency room physician, did
not think Parker's knife was the instrument that caused her injuries
based on his examinations of Dorlene's knife wounds, the knife, and
the autopsy photographs and report. He admitted that he had not
measured the depth of the wounds but noted that he determined that the
wounds extended “from the skin all the way into the chest cavity” or
at least two inches or more. Exh. Vol. 6 at 1056-57. He also explained
that, although the knife had a serrated edge, he did not observe any
“sawing effect” on the wounds, which were described in the autopsy
report as having a “sharp” and “fairly smooth rounded edge.” Id. at
1059. He conceded that the forensic pathologist who performed the
autopsy had more specialized training and would have probably made
more specific *1275 detailed observations about the knife wounds.
During his closing argument, Parker's attorney
stipulated twice that Parker was at the Sennett home on the day of the
murder and that Parker and Smith assaulted Dorlene. He argued that,
consistent with May's testimony, Parker and Smith merely assaulted,
cut, stabbed, and robbed Dorlene leaving her unconscious but alive. He
maintained that, when Sennett returned to his home and found Dorlene,
he murdered her to prevent her from divorcing him over the affair that
he was having. He explained that, although only one knife had been
admitted into evidence, there were two sets of knife wounds on
Dorlene's body. He reminded the jury that Dorlene was alive when the
paramedics arrived about 20 minutes after Sennett's emergency call and
that the testimony indicated that she would not have survived long
after being stabbed. He also reviewed with the jury that the exhibit
knife was six inches long, one and one-quarter to one and one-half
inches wide, and one-eighth inch thick, but that some of the knife
wounds appeared to be two inches long, three-quarters inch wide, and
one half inch thick.
In arguing for the death penalty, the prosecutor
noted that: certainly we have had some evidence of criminal activity
on the part of [Parker]. It came out in the form of [ ] previous
criminal activities, about drugs, selling and using drugs. I believe
there was some mention of stealing gasoline on one occasion. So again,
there is evidence of prior criminal activity. Exh. Vol. 9 at 1770.
He maintained that the jury should “do the right
thing” by imposing a “proper verdict” of death, and asked “how many
times, how many times does a person have to do something like this
before ... [being classified] basically as a bad person.” Id. at 1777,
1780. Despite the prosecutor's argument, the jury returned a verdict
recommending, by a ten to two vote, that Parker be sentenced to life
without parole. The Alabama Court of Criminal Appeals found that any
error caused by the prosecutor's sentencing-phase comments was
harmless “because the jury, by a vote of ten to two, recommended life
without parole.” Parker I, 587 So.2d at 1095.
A petitioner cannot show sentencing phase prejudice
when the jury recommends a sentence of life instead of death. Routly
v. Singletary, 33 F.3d 1279, 1297 (11th Cir.1994) (per curiam). Parker
cannot, therefore, demonstrate that, but for the prosecutor's death
penalty argument the outcome of the sentencing phase would have been
different. The district court did not err in finding that the Alabama
courts' decisions were neither contrary to nor an unreasonable
application of the law, and were not based on an unreasonable
determination of the facts.
C. Failure to disclose information in violation
of Brady v. Maryland
Parker contends that, despite his motions and
requests for all favorable and exculpatory evidence, the prosecution
failed to reveal that one of its witnesses, Teddy Lynn White, had more
convictions than it initially disclosed. He maintains that the facts
of White's additional convictions, his eligibility for release, the
withdrawal of his initial release date, and his subsequent release
were discoverable and highly prejudicial. He argues that the Alabama
courts incorrectly interpreted Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963) by finding that the prosecutor's lack of
knowledge of White's convictions or early release excused the
prosecution from complying with Brady.
Parker moved for favorable and exculpatory
discovery in May 1988 and in March and May 1989. In response to these
requests, Alabama produced a statement of White dated 19 May 1989. In
this statement, White explained that he was serving a sentence for
burglary. White stated that, about one to two weeks before the murder,
Parker had asked him to sell him a gun and had told White that he and
“Kenny” planned to murder someone for money. Exh. Vol. 14 at 2672-76.
At a pre-trial motions hearing, in response to Parker's Brady claims,
the prosecutor explained that he had provided Parker's attorney with
“a complete copy of [his] file.” Exh. Vol.1, R5 at 105.
During the trial, the judge overruled Parker's
objection to White's testimony. Parker argued that the statement that
the prosecution had provided to him did not indicate any exculpatory
evidence, including White's criminal record. White then testified,
consistent with his prior statement, about his conversation with
Parker before the murder. White answered “Yes” when asked whether he
had been convicted of a felony “on more than one occasion,” and stated
that all of his felonies were burglaries. Exh. Vol. 8 at 1483-84. He
also responded that he had not been promised anything, including that
there would be no objections to his release, in exchange for his
testimony.
During the motion for new trial hearing, however,
Parker's counsel learned that, at the time of White's testimony on 6
June 1989, White had been convicted of theft, receiving stolen
property, burglary, and unlawful breaking and entering. White also had
an earlier burglary conviction in 1985. Parker's counsel also learned
that, although White was originally scheduled to be released on 24 May
1989, his release was delayed on 19 May 1989 (the same day that he
provided his statement). White had submitted a request for the
Supervised Intensive Restitution Program (SIR) in March 1989. His
application was approved and he was scheduled for SIR release on 24
May 1989. On 10 May 1989, however, the Lauderdale County District
Attorney filed a “protest” to White's placement in SIR. Exh. Vol. 10
at 1845-46, 1850-51. On 26 May 1989, the prison's Director of
Classification disapproved of the protest and advised that White was
to be placed into SIR on 26 May 1989 “regardless of the protest.” Id.
at 1851, 1863-64. On 12 June 1989 (one week after his testimony in
Parker's trial in Colbert County), White's release into SIR was
approved and, on 14 June 1999, he was released from confinement and
put into the SIR program.
On 18 May 1989, while White's SIR application was
being reviewed, May was advised that White might have a connection
with Parker's case. May attempted to have White interviewed
immediately, but was unable to have the interview conducted until 19
May 1989.
On appeal, the Alabama Court of Criminal Appeals
found that there was “no evidence that the prosecution suppressed any
evidence whatsoever.” Parker I, 587 So.2d at 1086. It noted that (1)
the contention that White's testimony was secured in exchange for his
release was “supported only by a coincidence of facts,” (2) Parker was
aware that White would testify before the trial, and (3) there was no
evidence that the prosecution had obtained or had possession of
White's arrest history or knowledge of his prior convictions. Id. at
1086-87.
The district court held that the Alabama court did
not unreasonably apply the Brady suppression element and that the
decision was not based on an unreasonable *1277 determination of the
facts. It also held that Parker failed to prove prejudice with regard
to either claim.
Once a defendant requests the discovery of any
favorable evidence material to either guilt or sentence, the
prosecution's suppression of such evidence, whether in good or bad
faith, violates due process. Brady, 373 U.S. at 87, 83 S.Ct. at
1196-97. The prosecutor has a duty not only to disclose such favorable
evidence but also “to learn of any favorable evidence known to others
acting on the government's behalf ....” Kyles v. Whitley, 514 U.S.
419, 432, 437, 115 S.Ct. 1555, 1565, 1567, 131 L.Ed.2d 490 (1995). The
duty exists whether or not the prosecutor knew of the existence of the
evidence if the evidence was in the possession of the government arm
or generally provided only to governmental entities. Martinez v.
Wainwright, 621 F.2d 184, 186-87 (5th Cir.1980). The prosecution does
not, however, have an obligation to seek evidence of which it has no
knowledge or which is not in its possession. United States v. Luis-Gonzalez,
719 F.2d 1539, 1548 (11th Cir.1983). Further, there is no suppression
if the defendant knew of the information or had equal access to
obtaining it. Maharaj v. Sec'y of the Dep't of Corr., 432 F.3d 1292,
1315 n. 4 (11th Cir.2005). In Alabama, a defendant has access to
convictions records which are “matters of public record” and
“available through counsel's own efforts.” Ex parte Perkins, 920 So.2d
599, 606 (Ala.Crim.App.2005) (per curiam).
To demonstrate a Brady violation, a defendant must
show that: (1) the cumulative effect of evidence was favorable because
it was exculpatory or impeaching; (2) the evidence was willfully or
inadvertently suppressed by the prosecution; and (3) the evidence was
material; and (4) that the failure to disclose the evidence was
prejudicial. Bradley v. Nagle, 212 F.3d 559, 566 (11th Cir.2000) (citation
omitted). The prosecution is not required to provide its entire file
to the defense, but must disclose “material” evidence. Stephens v.
Hall, 407 F.3d 1195, 1203 (11th Cir.2005) (citing United States v.
Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481
(1985)). Excluded evidence is material “only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in
the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
The Alabama Court of Criminal Appeals reasonably
applied Brady in finding that the prosecutor did not suppress evidence
of White's convictions. The prosecutor provided Parker with all of the
information that he had and there was no showing that the prosecutor
had knowledge of White's other convictions. White's conviction record
was available to Parker's attorneys and used by them in support of the
motion for new trial. Further, Parker did not show prejudice. The jury
heard White's testimony that he had multiple convictions for burglary;
his convictions for theft and breaking and entering were not
materially different enough to provide additional bases for
discrediting his testimony. Further, even if White's testimony was
discredited, same or similar testimony was presented that Parker was
looking for a gun on the morning of the murder and that Parker
admitted to participating in a murder for hire scheme. FN25 Parker is,
therefore, also *1278 unable to show materiality for White's arrest
record.
FN25. Donald Larry Buckman testified that, on the
morning of the murder, Parker and Smith visited Buckman's home but
stayed in Parker's car. Buckman said that Smith asked him if he knew
where they could find a gun. After Buckman responded that he did not
know, Smith asked if Buckman wanted to take a ride with them, but
Buckman declined.
May testified that Parker said initially that he
was given $1000 to allow Williams and Smith to use his car to kill
Dorlene. Later, while testifying regarding Parker's admission to his
participation in the crime, May said that Parker told him that after
leaving the Sennett's residence, he and Smith drove to Williams' house
where he collected $900 and that he had received $100 the day before
to buy a handgun. There was also no showing that the Colbert County
prosecutor had any knowledge related to White's release or of the
delay of his release due to the protest filed by the Lauderdale County
prosecutor. White's application for the SIR program was filed months
before May learned of his connection with Parker, and was approved
before White's interview or testimony. White testified that no one had
promised him anything in exchange for his testimony, and May testified
that no one had promised White a SIR release in exchange for his
testimony. White's SIR supervisor also stated that no one in the Board
of Corrections' chain of command, except possibly the Prison
Commissioner or the prison's Director of Classification, could move a
prisoner to SIR in exchange for his testimony in a case and that he
knew of no one who had been so moved. Parker has not shown that the
Alabama Court of Criminal Appeals unreasonably determined the facts
regarding his Brady claim as to White's release when it held that the
claim was “supported only by a coincidence of facts” or unreasonably
applied Brady in holding that he failed to prove that the prosecution
suppressed knowledge of a release agreement. Parker I, 587 So.2d at
1086-87.
D. Ineffective Assistance of Counsel
Parker argues that there were multiple deficiencies
that resulted in ineffective assistance of counsel during the trial
and sentencing. He explains that, although his attorneys recognized
that they were not qualified or prepared to competently handle a
capital trial, their motions for removal from the case were denied.
In order to present a claim of ineffective
assistance of counsel, the defendant must show that (1) counsel's
performance was deficient and (2) the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984). The defendant must make both
showings in order to establish that the conviction or sentence was
caused by “a breakdown in the adversary process that renders the
result unreliable.” Id. at 687, 104 S.Ct. at 2064. The deficient
performance inquiry focuses on “whether counsel's assistance was
reasonable considering all of the circumstances,” and is judged under
an “objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. at
2064-65. The petitioner bears the heavy burden of proving that “no
competent counsel would have taken the action” taken by his counsel.
Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir.2005) (quotation
marks and citation omitted). “Because of the difficulties inherent in
making the evaluation [of reasonable assistance], a court must indulge
a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance” and “the defendant must
overcome the presumption that, under the circumstances, the challenged
action” could be considered trial strategy. Strickland, 466 U.S. at
689, 104 S.Ct. at 2065. Although the Strickland presumption is
demanding, it is not insurmountable. Chatom v. White, 858 F.2d 1479,
1485 (11th Cir.1988). It can be met when the deficient actions center
on a single sufficiently egregious and prejudicial incident. *1279 Id.
And it may be assessed against the seriousness of the charges filed
against the defendant. Magill v. Dugger, 824 F.2d 879, 886 (11th
Cir.1987). Additional, but cumulative, evidence which could have been
presented does not, however, establish ineffective assistance. Van
Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1324 n. 7 (11th Cir.2002)
(per curiam).
1. Parker's Intoxication and Impairment at the
Time of Statement
Parker maintains that his attorneys were
ineffective because they failed to address his impairment at the time
of his statement and failed to hire expert witnesses who could
specifically address this impairment in testimony at the suppression
hearing.
During the suppression hearing, Fountain testified
that she had been with Parker the entire day of the arrest and that he
had begun drinking beer and smoking marijuana early in the day.
Fountain said that Parker drank at least “six to eight” beers and had
smoked at least “[f]ive to six joints” of marijuana that day. Exh.
Vol. 2 at 238-239, 248. She commented that he had also been “shooting
up” Talwin, but she did not recall seeing him do so on the day of the
arrest. Id. at 238-39, 248.
May testified that Parker asked to speak with him
sometime after 5:45 in the afternoon on 31 March 1988. May met with
Parker and, after advising Parker of his Miranda rights, Parker made
his statement. May explained that he was trained to look for evidence
of drug or alcohol use during interrogations but that he did not
detect any signs of drug or alcohol impairment on Parker and that
Parker appeared to understand what he was saying. May testified at
trial that, after Parker began his initial statement, he asked Parker
whether he was telling the truth and Parker changed his story.
Dr. James Edward Crowder, a local clinical
psychologist, testified. Based on the evidence of Parker's alcohol and
drug use at the time of his arrest, Crowder opined that Parker would
“have had a reduction in his ability to withstand pressure [and]
frustration and ... would have had to some extent an impairment in his
judgment.” Exh. Vol. 2 at 259-60. On cross-examination, he conceded
that an experienced drinker could develop a tolerance to alcohol that
would permit him to function with a higher level of alcohol. Crowder
explained that, if Parker's judgment was impaired by alcohol or drugs,
he might be inclined to act in a manner “not in his best interest.” Id.
at 262. He conceded that evidence of Parker's requests for visits with
investigators in the days following his first interview might indicate
that his judgment had not changed much between his first and
subsequent visits.
During the post-conviction hearing, Dr. Peter
Breggin testified as an expert in psychiatry, forensic psychiatry, and
drug abuse, and Dr. Emanuel Hriso as an expert of neuropsychiatry and
addiction. Based on the evidence of Parker's alcohol and drug use on
the day of his arrestFN26, Breggin opined that by the time of his
statement at 5:30 P.M., Parker would have been in a mixed state of
alcohol and marijuana intoxication and alcohol withdrawal. He
explained that Parker would have been suffering from anguish,
desperation, discomfort, and pain as a result of alcohol withdrawal
compounded by his inability to inject Talwin. Breggin stated that the
combination of withdrawal, brain damage, *1280 and neuropsychological
deficits would have altered Parker's judgment and made it more
difficult for him to control his impulses. He explained that, “driven
by a combination of intoxication[,] addiction withdrawal[,] and memory
problems” “more than his will,” he may have understood the basic
questions but would have felt “an extreme amount of urgency to say yes
to anything that he thought would get him ... home.” Exh. PC Vol. 11
at 202-03. He noted that the sedative drugs that Parker was using,
alcohol and marijuana, would have acted as a truth serum to “loosen
his control over his own willful processes.” Id. at 203-06.
FN26. Although Breggin also explained that Parker
was addicted to intravenous injections of Talwin and the problems
associated with such, the trial judge reminded him that there was no
evidence of Parker's use of Talwin on the day of his statement.
Hriso commented that Parker's alcohol and marijuana
use could sedate and impair Parker's judgment so that he could not
control his normal defenses and would not be unable “to make correct
declarations.” Exh. PC Vol. 14 at 717-18. He also noted that Parker
would have been vulnerable to Talwin withdrawal, to an impaired
judgment, and to an inability to understand the exact meaning of words
spoken to him. Hriso explained that, because erratic behavior was
expected in such a state, it was understandable that Parker would have
asked to speak to May and had confessed to the crime.
The determination of a confession's voluntariness
requires an examination of the totality of the circumstances and
ultimately requires an inquiry into whether the statement was “the
product of an essentially free and unconstrained choice.” Hubbard v.
Haley, 317 F.3d 1245, 1252-53 (11th Cir.2003) (citation and quotation
marks omitted). We consider a number of factors, and the presence of
one alone is not determinative. Id. at 1253. A confession that was not
the product of free will and rationale intellect or that was made when
the individual's will was “overborne” by physical, psychological, or
drug-induced means, is inadmissible. Townsend v. Sain, 372 U.S. 293,
307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963), overruled on other
grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5, 112 S.Ct. 1715,
1717, 118 L.Ed.2d 318 (1992). In determining whether or not a
confession is constitutionally voluntary, the truth or lack thereof of
the statement is irrelevant. See Rogers v. Richmond, 365 U.S. 534,
544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961).
In Alabama, although a confession will be deemed
inadmissible if the defendant's mind was “substantially impaired” at
the time of the confession, “[i]ntoxication, short of ... impairment
of the will and mind as to make the individual unconscious of the
meaning of his words, will not render a statement or confession
inadmissible.” Free v. State, 495 So.2d 1147, 1156 (Ala.Crim.App.1986)
(citation and quotation marks omitted). The voluntariness
determination is a matter of law for the trial court, and that court's
decision will not be reversed unless it is manifestly wrong or
contrary to the great weight of the evidence. Id.
The state courts rejected this claim because there
was not a reasonable probability that the outcome of the suppression
hearing would have been different with the experts' testimony or that
the exclusion of Parker's statement would have changed the jury
determination of guilt. The state trial judge found that “[n]othing
presented at the [post-conviction] hearing is of such nature that this
Court would have ruled differently on [Parker's] suppression motion if
this Court had been presented with this evidence at trial.” Exh. PC
Vol. 3 at 527. The state appellate court held that Parker failed to
show that he was prejudiced by his attorneys' failure to call expert
witnesses at the suppression hearing and therefore failed to show that
his attorneys were ineffective. The district court *1281 correctly
held that this conclusion was objectively reasonable. None of Parker's
post-conviction experts examined Parker on the day of his statement;
their testimony was based on his medical history and their opinions
that Parker would have been suffering withdrawal or impairment. May
did not detect any signs of impairment when Parker made his statement,
and Crowder indicated that Parker's subsequent contact with the
officers might indicate that he was no more impaired than he had been
during his first statement. Parker was cognizant of his situation when
he began his statement, and drove himself, Fountain, and a law
enforcement officer to the courthouse.FN27
FN27. Despite conflicting testimony regarding who
drove the car to the courthouse, the trial court accepted the
testimony that Parker was the driver. There was no clear and
convincing evidence presented to rebut this.
The state court's factual determination that Parker
exercised his free choice was not objectively unreasonable or
disproved by clear and convincing evidence. The district court
correctly held that the state court reasonably applied Strickland in
finding no prejudice. Parker also failed to prove deficient
performance. His trial attorneys did present evidence regarding the
effects of his drug use at the suppression hearing. Any additional
evidence would have been merely cumulative.
2. Experts Regarding the Murder and Weapon
Parker contends that his trial counsel failed to
make proper use of the evidence which showed that Parker, who was in
Florence at 11:30 A.M., could not have inflicted the fatal stab wounds,
which were inflicted no earlier than 11:42 A.M. He maintains that
Veasey's testimony during the post-conviction hearing regarding the
time of the fatal attacks bolstered Parker's theory of the crime and
was actually consistent with the testimony of prosecution witnesses at
trial. Parker also maintains that his attorneys were ineffective for
(1) failing to present available evidence that Charles Sennett killed
his wife after Parker and Smith left the Sennett residence, and (2)
failing to call a qualified expert to address the prosecution's
allegations that Parker's survival knife was the murder weapon. He
maintains that none of the experts who testified at the trial were
qualified to meaningfully address the relationship between Dorlene's
wounds and the size and shape of the knife.
At trial, all three doctors who testified regarding
the pathology of Dorlene's death indicated that the fatal stab wounds
appeared to have been inflicted within minutes of the law enforcement
officials' arrival at the Sennetts' home at 12:09 P.M. It is
uncontested that Parker was not at the residence at that time. Dr.
Emily Ward, the forensic pathologist who performed Dorlene's autopsy,
described the wounds as “rapidly fatal” because they would cause death
in no more than five minutes from blood loss and the accumulation of
air in the chest cavity. Exh. Vol. 6 at 1012-13. Dr. McKinley believed
that the primary fatal wounds were made to Dorlene's chest within 30
minutes of the emergency medical team's detection of a pulse.FN28
Board certified forensic pathologist Dr. James Allen Barksdale opined
that the wounds were inflicted “[w]ithin a very few minutes” of the
emergency medical team's detection of a heartbeat.FN29 Exh. Vol. 8 at
*1282 1537. May testified that his investigation confirmed that Parker
was in Florence at 11:30 A.M. on the morning of the murder, and that
it normally took about 30 minutes to drive from the Sennetts' home to
Florence.
FN28. The emergency medical team arrived at the
Sennetts' residence at 12:09 P.M. The team's report reflected a pulse
rate “approximately 2 minutes or so after 12:09.” Exh. Vol. 6 at 1049.
FN29. During his questioning of Dr. Barksdale,
Parker's attorney stated the evidence showed the time of the emergency
medical team's detection as “approximately 12:15 P.M.” Exh. Vol. 8 at
1537.
During the trial, there was conflicting testimony
presented as to whether Parker's survival knife was the murder weapon.
Dr. McKinley did not believe that Parker's knife was the murder weapon.
He did not, however, examine the length and widths of the stab wounds
to determine whether or not the knife matched the wounds. Dr.
Barksdale also reviewed the evidence and did not believe that Parker's
knife was the murder weapon. He admitted that he did not participate
in the autopsy and that it was hard to make a judgment based solely on
the pictures unless the view was “straight on.” Exh. Vol. 8 at
1540-41, 1544-45.
Dr. Ward testified that the size and irregularity
of Dorlene's stab wounds matched the irregular, jagged back-side of
Parker's survival knife. She testified that Dorlene sustained
defensive wounds and did not likely survive more than five minutes
after being stabbed. Alabama forensic supervisor John Kilborn
testified that Parker's knife contained “one colorless wool fiber at
the hilt” that was “similar” to the fiber on the afghan found at the
Sennetts' home. Exh. Vol. 7 at 1348.
At the post-conviction hearing, Parker presented
the testimony of board certified forensic pathologist Dr. Sparks P.
Veasey. Veasey explained that, in examining a stab wound, a
pathologist measures the length of the wound across the skin and the
approximate depth of penetration. He said that the approximation of
the wound depth could be the same size as the knife that inflicted the
wound or vary from shorter to longer based on tissue differences, lung
deflation, abdominal and skin flexibility, abdominal or chest wall
compression, and the amount of force used. He rejected for lack of
medical certainty Ward's statements regarding the correlation between
the wound and the knife and the “unusual” characteristics of the wound
as necessarily being caused by a jagged or serrated edge. Exh. PC Vol.
14 at 809-12, 817, 819. Veasey noted that certain characteristics of
the knife should have correlated with the wounds but did not. He
pointed out that the knife admitted into evidence had a hilt or guard
that separated the blade from the handle and that, if thrust
forcefully into a victim, it would leave patterned abrasions or
contusion injuries around the wound which were not found on Dorlene's
wounds. Veasey also explained that the width, or distance between the
sharp and dull sides, of the admitted knife was inconsistent with the
width of the wounds. Veasey opined that Dorlene's wounds, which
consisted of both blunt trauma and cutting injuries, occurred at two
separate times: the earlier blunt trauma episode in which she
attempted to defend herself and was thus “cognizant” of the attack,
and the later cutting episode, which showed no evidence of defensive
actions and occurred within thirty minutes of the emergency medical
team arrival. Id. at 835-41. On cross-examination, Veasey admitted
that he had trouble seeing “certain details” from the wound pictures
and that Dr. Ward would have been in a better position to see the
wound details. Id. at 846-47. He conceded that Parker's knife could
have been the murder weapon.
The state court noted that Veasey's testimony would
not have changed the outcome of the trial but would have supported the
prosecution's theory of the crime, and went to the weight of the
evidence the jury placed on Ward's testimony. The state appellate
court held that Parker was not prejudiced because the additional
expert witness's additional testimony was cumulative. Parker's
attorneys presented witnesses during the trial who testified that
Parker's knife was not the murder weapon. Because Veasley's testimony
would have been cumulative, the district court correctly held that the
state court reasonably applied Strickland.
3. Expert testimony regarding Parker's brain
damage and alcohol use
Parker argues that his trial counsel failed to
present evidence regarding the full extent and impact of Parker's drug
addiction and brain damage. He maintains that the post-conviction
testimony of Doctors Breggin, Hriso, and Marson established the
availability of substantial mitigating evidence that was neither
cumulative nor substantially similar to other evidence.
At sentencing, Parker presented three witnesses:
Joan Parker (“Joan”), Parker's mother; Dr. James Crowder, the clinical
psychologist; and Charlotte Dean, Parker's eighth grade teacher. Joan
testified that Parker was a very active child and suffered a head
injury that left him unconscious for about two days when he was two
years old. While Parker was in kindergarten and first grade, he was
observed intensely shaking and vomiting in response to any kind of
pressure, and had a short attention span. Joan took him to a doctor
who diagnosed Parker with hyperactivity, put Parker on Ritalin so that
he could sit still and listen, and advised her to place Parker in a
school atmosphere that would permit him to learn at his own speed. The
Ritalin calmed Parker but Joan did not give Parker the prescribed
dosage because it interfered with his ability to sleep. When Parker
was about 10 to 12 years old, he was taken off Ritalin. About the same
time, Parker fell behind his classmates scholastically and began to
hang out with some older boys who supplied him with marijuana and
alcohol. About six weeks after being removed from Ritalin, Parker
began showing severe physical reactions. He did not adjust well to
middle school and, despite Joan's pleas, was never placed into special
education classes. When Parker was in middle school, he was placed in
a six-week drug treatment program because of his parents' concerns
about his marijuana and pill use. About four months after leaving the
program, however, Parker slipped back into using drugs and alcohol.
When Parker was 18, he returned to a drug treatment program. By 23
March 1988, however, Parker was using drugs intravenously. Joan
explained that the only violent acts she observed from Parker were
directed toward himself or inanimate objects.
Dr. Crowder saw Parker for evaluations in 1983 and
in 1990 for emotional problems and treatment. He tested Parker using
the Minnesota Multiphasic Personality Inventory for personality
characteristics and mental illness diagnostics, the Wechsler Adult
Intelligent scale, and a Wide Range [Academic] Achievement test to
measure his scholastic achievements. The tests revealed that Parker
had an intelligence quotient of 83, read and performed arithmetic at a
seventh grade level, and felt that he was “not a very good person” and
“inadequate when compared to other people.” Exh. Vol. 9 at 1739-41.
Crowder explained that the intelligence and achievement tests
indicated that Parker was not good at making decisions or judgments or
retaining information for a long period of time, and was better at
working with his hands than with words. Crowder noted that the
personality inventory indicated that Parker felt “a great deal of
guilt and remorse for his actions,” had “trouble controlling his
impulses,” and was “anxious” and “restless.” Id. at 1741-42. Crowder
said that he knew of no significant Ritalin withdrawal symptoms.
Dean testified that Parker was a quiet, easy going
student, but that she never felt that she was able to reach, inspire,
or motivate him. She said that he “chose to run around with the wrong
kind of people,” became involved in drugs, and “seemed sad and
melancholy most of the time.” Id. at 1756-57. She commented that he
had not matured emotionally, intellectually, or socially after the 7th
grade but was never a discipline problem or violent and was accepting
of authority.
During the post-conviction hearing, Parker's
attorneys, H. Thomas Heflin and Gene Hamby, testified. Heflin said
that he attempted to explain Parker's drug problem to the jury through
Crowder's testimony and by introducing Parker's past medical records.
He said that he and Hamby had discussed using Crowder as the expert
and that they had also unsuccessfully attempted to contact Dr. Nyland,
a neuropsychiatrist or psychologist, who had treated Parker. Heflin
did not recall any efforts to find a toxicologist or another
psychiatrist, and used Crowder to discuss Parker's drug use because
“he was the witness we had.” Exh. PC Vol. 10 at 46; PC Vol. 11 at
135-36. Heflin did not discuss Crowder's qualifications with him and
did not know if Crowder had testified in other criminal proceedings.
Hamby recognized that Parker's mental abilities were “limited” due to
his drug problems and head injury but was unaware of what an expert
could do to explain those problems to the jury. Exh. PC Vol. 13 at
528-59. Hamby explained that he called Crowder to testify because he
was unable to find a psychiatrist who had treated Parker. Hamby did
not remember considering hiring a toxicologist for the suppression
hearing.
Clinical psychologist Glen David King testified for
Alabama as an expert witness in clinical psychology and forensic
examinations. After reviewing the trial record, including Parker's
mental health records, King opined that Parker “well understood [and
appreciated] the difference between right and wrong” at the time of
the offense. Exh. PC Vol. 15 at 881-82, 886. He noted that Parker had
evidenced his understanding of his actions by engaging in a series of
goal-directed behaviors over a fairly lengthy period of time. He
observed that Parker's actions included: (1) making a contract for
pecuniary gain, (2) driving to the Sennetts' home, (3) committing the
murder, and (4) attempting to cover the murder by making it appear as
a robbery, all of which evidenced a “consciousness of guilt.” Id. at
888-89. He believed that the combined effect of Parker's intelligence
quotient and mental impairments from long-term poly-substance abuse
and intelligence quotient was outweighed by his goal-directed sequence-patterned
behaviors in the crime. King commented that individuals who commit
crimes as a result of ... serious mental illness or mental defect,
usually commit crimes that are random in nature; they will often stay
around the crime scene. It is fairly clear to people who observe them
that they are operating under some delusion or hallucinatory
compulsion, and none of these behaviors have been reported for Mr.
Parker. ... When somebody commits a crime under mental illness or
mental defect ... usually their behavior is random. It may not make
sense to those who observe ... from the outside. There *1285 doesn't
appear to be much of an obvious motive behind it. [T]hey often engage
in these kinds of random[,] unusual or peculiar behaviors on regular
basis. It's not something that occurs once and doesn't occur again, or
it doesn't occur for months at a time. Id. at 889-90.
Parker's mitigation strategy was effective. The
jury recommended a sentence of life without parole. The trial court,
however, overrode the jury recommendation and sentenced Parker to
death, finding that the aggravating circumstance of “[k]illing a human
being, intentionally and deliberately, for money, evidence[d] a total
and complete disregard for the value and uniqueness of human life” and
outweighed the mitigating circumstances. Parker II, 610 So.2d at 1181.
It considered the mitigating circumstances of Parker's age, remorse,
lack of prior criminal history, and the jury's recommendation, but
rejected the mitigating circumstance regarding Parker's drug use. Id.
at 1179-81. It found that Parker's “capacity ... to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law” was not “substantially impaired.” Id. at 1180.
Although it acknowledged Crowder's testimony regarding the impairments
to Parker's judgment caused by his drug use, it recognized evidence of
Parker's “actual actions during and after” Dorlene's murder which
demonstrated the lack of his impairment. Id. It noted that evidence of
Parker's appreciation for the criminality of his conduct and the
possibility of his apprehension included his placing cotton socks over
his hands before the murder, throwing away the weapon after the murder,
making the scene look like a burglary, throwing away the stereo, and
burning his clothes. It found that there was “no proof” that Parker's
drug addiction was based on his childhood medication for hyperactivity
and that Parker's childhood problems were “appropriately treated.” Id.
During the post-conviction proceedings, the state
judge ruled that the expert testimony regarding Parker's drug addition
and brain damage was “substantially similar” to the testimony offered
at sentencing and that the other testimony of Parker's drug use and
mental problems was “cumulative, repetitive and redundant.” Exh. PC
Vol. 16, R-60 at 530-32. Based on King's post-conviction hearing
testimony, which was consistent with Bryant and Nagi's expert trial
testimony, the state judge was not convinced that Parker had any
appreciable brain damage relevant to the murder. The state judge
concluded that “even if all of the expert testimony had been presented
at the sentencing hearing, [she] would have still imposed the death
penalty.” Id. at 518; see also id. at 519 (“[Parker] would have
received the death penalty even if the [post-conviction] testimony had
been presented at sentencing.”). The state appellate court noted that
Parker failed to show prejudice as a result of his attorneys' failure
to call additional expert witnesses because the evidence was
cumulative and the experts did not establish that he had a mental
defect, disease, or intoxication severe enough to provide a defense
for his actions or was incapable of discriminating between right and
wrong.
To show prejudice, Parker must prove that there is
a reasonable probability that the sentencing judge would have arrived
at a different conclusion after being presented with the additional
evidence and reweighing the aggravating and mitigating circumstances.
In Alabama, the trial judge is the ultimate sentencer in capital
cases. Ala.Code § 13A-5-47 (1994). In this case, the sentencing judge
was the same as the post-conviction judge and clearly stated that the
sentence would not have been different even with additional testimony.
The district court did not err in finding that the state courts
reasonably applied Strickland in rejecting his ineffective assistance
of counsel claim.
E. Probable Cause for Parker's Arrest
Parker argues that there were no circumstances
related to his detention on 31 March 1988 which justified his arrest
without a warrant. He maintains that the actions and activities of the
law enforcement officers at his residence and at the Sheriff's Office
indicate that he was not free to leave and was under the custody and
control of the Sheriff's Department. Alabama responds that, because
the state court's decision regarding the use of Parker's statement was
based on its application of New York v. Harris, 495 U.S. 14, 110 S.Ct.
1640, 109 L.Ed.2d 13 (1990), we need only address whether the Alabama
Court of Criminal Appeals unreasonably applied Harris in finding that
Parker's statements were admissible.
1. Veracity of the Informant
Parker maintains that his attorneys should have
established that much of the information provided by the female
confidential informant was available to anyone acquainted with him. He
claims that his attorneys should have addressed the inconsistencies
between May's affidavit and his testimony regarding the basis for the
informant's information.
In March 1988, May executed an affidavit in support
of a warrant to search a residence where he believed he would to find
the VCR stolen from the Sennetts' residence. In the affidavit, May
related that an unidentified person (“the Source”) provided
information that was not publicly available regarding Dorlene's murder,
named the persons involved, and described a VCR stolen from the
Sennetts' residence. May said that the Source claimed that “ ‘the
preacher’ had paid Fifteen Thousand Dollars ($15,000) to have his wife
killed.” Exh. Vol. 13 at 2423. May explained that some of the
information was corroborated by another unidentified person and by
investigators who confirmed the location and description of the
identified residences of the named individuals. May recounted that the
Source said that the provided information was based on “personal
observation and overhear[d] conversations involving one or more of the
individuals named.” Id. at 2428.
Parker's attorney moved to suppress Parker's
statement, and argued that the police lacked probable cause for the
arrest. At the suppression hearing, May testified that he obtained
information regarding the crime from an anonymous informant on 28
March 1988. The informant provided: (1) the names of three individuals;
(2) their roles in the murder; (3) their addresses and descriptions of
their residences; (4) a description of their vehicles; and (5) the
location as of 18 or 19 March 1988, and identifying information
regarding the VCR stolen from the Sennett home. May testified that the
informant had advised that she had personally seen the VCR at Smith's
residence. May explained that the information was verified by other
investigators who confirmed the locations and descriptions of the
named individuals' residences, the connection between the three named
individuals, and the information regarding their vehicles. The
investigators verified that John Forrest Parker existed, that he had a
criminal record, and that he lived at 2613 Huntsville Road, Apartment
B, Florence, Alabama. They also verified the information regarding his
car, his physical description, his girlfriend, and his relationship
with the other named individuals. *1287 Although a search warrant was
issued regarding the VCR, no arrest warrants were to be issued until
it was executed. Law enforcement teams were dispatched to each
suspect's residence and instructed to do nothing else until further
notice. The information regarding the VCR was then verified.
During the post-conviction hearing, May explained
the inconsistencies in his affidavit and testimony. May explained that
the informant obtained her information by being a “friend of [Smith's]
family” and confirmed that, in the search warrant affidavit, he had
indicated that her information was based on her personal observations
or the conversations involving the named individuals that she had
overheard. Exh. PC Vol. 15 at 1031-34. Although he agreed that
“reliability is ... important,” when asked why the basis of the
informant's information was not shown anywhere in his notes, May
responded that, “[a]t that ... time[,] what she was telling me about
who was involved in the murder was more important to me than how she
was getting the information.” Id. at 1033-35. May was questioned as to
whether his affidavit was correct as to the amount of money paid for
the murder, and responded that the information regarding the $15,000
was never corroborated or revealed by the investigation. May was also
asked about his contact with a second anonymous informant. The second
informant identified himself as “calling for a girl who knew all this
but did not want to get involved” and corroborated some of the
information provided by the Source. Id. at 1038. The second informant
also identified Smith as a black male and said that he knew that the
note found in Charles Sennett's pocket after his death read “I didn't
kill my wife. I hired someone to.” Id. at 1038-39. May responded that
the Smith involved in the case was white and that Sennett's note did
not say that he had not killed his wife or hired someone else to kill
her.
The information provided by the informant
established her basis of knowledge, reliability, and veracity. She
provided numerous details about the crime, the defendants' actions
after the crime, and the property taken during the crime. Her
information was corroborated by independent law enforcement
investigations and her basis of knowledge was enhanced when the VCR
was located where she indicated. Even though some of the information
was publicly available, the informant's disclosure of it and law
enforcement's confirmation of it supported the informant's credibility.
Her credibility, however, was firmly established by her knowledge of
the stolen VCR and the non-publicly disclosed details that connect
Parker and his co-defendants to the crime. See Parker I, 587 So.2d at
1088; Williams v. State, 565 So.2d 1233, 1234-36 (Ala.Crim.App.1990).
Under a totality of the circumstances review, the
informant was a credible source for information regarding the crime
and provided the police with information that Parker was involved in
the murder-for-hire scheme that led to Dorlene's death. They knew that
the VCR stolen from the Sennetts' home was located in one of the named
suspects' homes. Thus, they had sufficient probable cause to believe
that one of the named suspects had committed the murder.
In Williams, the court found that “the details of
the informant's tip as corroborated [were] sufficient both in number
and specificity to establish [her] credibility.” 565 So.2d at 1236. It
also found that the details indicating that she had either personally
observed the facts or learned them from a crime participant supported
an inference that she had an adequate basis of knowledge. Id. It noted
that, although the publicly-available information was entitled*1288 to
little weight, the VCR information was significant and “the cumulative
effect of all information gathered” met the standard of probable
cause. Id. (quotation marks and citation omitted). On the issue of
ineffective assistance, the state appellate court held that “in light
of the fact that the informant described in ... detail the VCR stolen
during the murder and accurately stated where it could be found, the
additional information [that Parker argued his attorneys should have
introduced] was not likely to affect the trial court's finding” and
that, therefore, Parker failed to demonstrate prejudice. Exh. Vol. Tab
61 at 2.
Parker's arguments fail. The accuracy as to the
amount of money paid for the murder did not enter into the probable
cause determination which was based on the totality of the
confidential informant's verified information. The fact of her
personal observation of the information was proven when the VCR was
found where the informant said that she had seen it. The district
court correctly found that the state court's determination was a
reasonable application of Strickland.
2. Lack of Probable Cause for Parker's Arrest
Parker maintains that his attorneys failed to: (1)
question the prosecution's witnesses concerning the inaccuracies in
the informant's statements or the affidavit executed in support of the
search warrant; (2) provide for an adequate foundation for suppression
of Parker's statement, and (3) adequately demonstrate that the law
enforcement officers lacked probable cause for his arrest. He argues
that evidence that the police approached his residence with their guns
drawn and patted him down inside his home indicates that he was
arrested inside his home. He contends that no intervening
circumstances extinguished the taint of his illegal arrest and thus
made his statement inadmissible. He asserts that his attorneys should
have called Colbert County Sheriff's Office Investigator Doug Hargett
who conceded that probable cause did not exist when Parker was taken
into custody.
At the suppression hearing, Hargett testified that
he and three other officers arrived at Parker's residence on 31 March
1988, observed the residence for 30 to 45 minutes, and were advised by
May “to move in” after the VCR information was verified. Exh. Vol. 1
at 199-200; Exh. Vol. 2 at 214; Exh. PC Vol. 15 at 1059. They then
knocked on the door and asked Parker to come out. As the officers
approached the residence, they observed Parker looking out of a window
and heard “what sounded [like] someone ... running through the
apartment.” Exh. Vol. 2 at 213-14. Angela Fountain, who was in the
residence, began screaming, and she and Tony Lakey were ordered out of
the apartment. The police again ordered Parker out of the apartment
and, after he stepped out, the officers patted him down and advised
him of his rights. Fountain and Lakey both remembered seeing the
officers' guns drawn as they approached. The officers then asked
Parker and Fountain to go downtown to be questioned. Parker and
Fountain, accompanied by an officer, drove to the Colbert County
Sheriff's Department.FN30 At the Sheriff's Office, *1289 Parker was
given MirandaFN31 warnings by Hargett and May before he made any
statements. The warrant for Parker's arrest was issued the next day, 1
April 1988.
FN30. It is unclear exactly who drove the car. May
testified that, to the best of his knowledge, Parker “voluntarily
drove” himself to Colbert County and was accompanied by Fountain,
Fountain's baby, and Lauderdale County Sheriff's Officer Charles
Perkins. Exh. Vol. 1 at 192; Exh. Vol. 2 at 201-02. Fountain said that
she drove their car and that she was accompanied by Parker and one of
the law enforcement officers. Hargett testified that Parker and
Fountain voluntarily agreed to return to Colbert County, and permitted
Perkins accompany them.
FN31. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966).
During the post-conviction hearing, Hargett
admitted that the officers had their guns drawn when they approached
Parker's residence at 2613 Huntsville Road in Florence, Alabama to
“follow up on information” that they had received from a confidential
informant but stated that they did not plan to arrest Parker.FN32 Exh.
PC Vol. 15 at 978-79, 983-84, 986, 992, 1007, 1059. As they approached
the residence, Hargett said that they heard screams and saw Fountain
in the doorway. Hargett explained that they then ordered Fountain and
Lakey out of the residence. Hargett said that, once Parker appeared in
the foyer, the officers asked him if they could speak with him and put
away their weapons. Parker was patted down for weapons inside his
living room and then ordered out of the residence. At the officers'
request, Parker and Fountain agreed to accompany the officers to the
Colbert County Sheriff's Office and to allow Lauderdale County
Sheriff's Investigator Charles Perkins to ride with them. Hargett
explained that Perkins rode with Parker and Fountain to prevent them
from discussing the murder.
FN32. Alabama City Police Investigator Robert
Wilhite corroborated Hargett's testimony that the officers had their
guns drawn and explained that he was requested to assist the Colbert
County officers when they went to “pick up” Parker. Exh. Vol. 13 at
578, 588.
Although Parker was not arrested until after he was
interviewed at the Colbert County Sheriff's Office, Hargett opined
that Parker was subjected to a warrantless arrest at his residence.
May stated that he was told by the district attorney that Parker had
been subjected to a warrantless arrest at his residence, and said that
the arrest report also showed that Parker was arrested at his
residence. Hargett was asked whether, after receiving confirmation
from the other investigators about their search for the VCR, he had
probable cause to arrest Parker. He responded that such information
would “have given us more probable cause” but said he did not make a
decision as to whether they would have had probable cause to arrest
Parker at that time. Id. at 985.
Because of concerns for public safety and the
expeditious apprehension of criminals charged with heinous crimes, law
enforcement officers with reasonable cause to believe that an
individual has engaged in a felony may arrest without a warrant.
Carroll v. United States, 267 U.S. 132, 156-57, 45 S.Ct. 280, 286, 69
L.Ed.2d 543 (1925). Probable cause exists where the facts and totality
of the circumstances, as collectively known to the law enforcement
officers and based on reasonably trustworthy information, are
“sufficient to cause a person of reasonably caution to believe an
offense has been or is being committed.” United States v. Jimenez, 780
F.2d 975, 978 (11th Cir.1986) (per curiam) (quotation marks and
citation omitted); see United States v. Roy, 869 F.2d 1427, 1433 (11th
Cir.1989). In determining probable cause based in part on confidential
informant information, a court should consider not only the totality
of the circumstances but also the “closely intertwined issues” of the
informant's basis for knowledge, reliability, and veracity. Illinois
v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527
(1983).
Under the Fourth Amendment, police are prohibited
from making a warrantless arrest and nonconsensual entry into a
suspect's home to make a routine felony arrest. See Payton v. New York,
445 U.S. 573, 588-90, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639 (1980).
Such an arrest may be made, however, if the officer has probable cause
to believe that the suspect has committed an offense and where exigent
circumstances exist which make obtaining a warrant imprudent, see
Payton, 445 U.S. at 589, 100 S.Ct. at 1381. Such exigent circumstances
may include (1) the “violent nature of the offense with which the
suspect is to be charged;” (2) “a reasonable belief that the suspect
is armed;” (3) “probable cause to believe that suspect committed the
crime;” (4) firm reasons to believe that the suspect is in the home;
(5) a reasonable belief the delay could allow for the destruction of
essential evidence; (6) a reasonable belief that delay could
jeopardize the safety of the law enforcement officers or the public;
and (7) a peaceful state of the entry. Bush v. State, 523 So.2d 538,
546 (Ala.Crim.App.1988).
Evidence, including verbal statements, obtained as
a result of an unlawful search are subject to exclusion. See Wong Sun
v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441
(1963). Although its purpose is to prevent lawless conduct by law
enforcement officials, the exclusionary rule is not to be “interpreted
to proscribe the use of illegally seized evidence in all proceedings
or against all persons.” Brown v. Illinois, 422 U.S. 590, 600, 95 S.Ct.
2254, 2260, 45 L.Ed.2d 416 (1975) (quotation marks and citation
omitted). An inquiry as to the applicability of the exclusionary rule
must address whether the evidence or “fruit of the poisonous tree” was
obtained by the “exploitation of that illegality or instead by means
sufficiently distinguishable [from the illegal action] as to be purged
of the primary taint.” Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (internal
quotations and citation omitted). Where, however, the police have
probable cause to arrest a suspect, the exclusionary rule does not bar
the prosecution's use of the defendant's statement made outside of his
home, even if the statement was taken after an illegal arrest made in
the home. Harris, 495 U.S. at 21, 110 S.Ct. at 1644-45.
In this case, the question is whether the
information known to the law enforcement officers at the moment of
Parker's courthouse confession was sufficient to establish probable
cause for his arrest. Probable cause was based on corroborated
information from a female confidential informant and not from
verifiable false information from a male informant. Probable cause was
based on both the detailed public information provided by the
informant and the specific information regarding the VCR. Parker is
unable to show prejudice or unreasonable performance by his counsel
because the evidence of the male informant had no bearing on the
court's admissibility of his statement. Parker is also unable to show
prejudice or deficient performance as a result of Hargett's statement
during the post-conviction hearing that Parker was subjected to a
warrantless arrest at his residence. Hargett did not possess all of
the information regarding probable cause, did not make the decision
about probable cause, and did not ultimately make a determination
about the admissibility of Parker's statement.
On direct appeal, the state appellate court noted
that the facts supplying probable cause for Parker's arrest were
“virtually identical” to those identified in Williams, 565 So.2d at
1236. Parker I, 587 So.2d at 1088. In addressing ineffective
assistance of counsel, the Alabama Court of Criminal Appeals held that
Parker had failed to demonstrate prejudice because his “claims
concerning arrest at home and intervening events are irrelevant
because the trial court found that the tip of an anonymous informant
was sufficiently corroborated to supply probable cause for [Parker's]
arrest.” Exh. PC Vol. 16, Tab 61 at 2. Further, at the time of
Parker's statement, he was outside of his home and the police had
probable cause for his arrest. His statement was, therefore,
admissible. See Harris, 495 U.S. at 21, 110 S.Ct. at 1644-45. The
district court correctly held that the state court reasonably applied
Strickland's prejudice element because further evidence of an in-home
arrest would not have affected the admissibility of Parker's statement.
Parker is also unable to prove deficient
performance because this evidence was cumulative. The trial court
heard Fountain and Lakey's testimony that Parker did not go out of his
house when called by the officers and that the officers went into the
house looking for him with their guns drawn and still admitted his
statement.
Because the police had probable cause to arrest
Parker when he made his statement, his statement was admissible
regardless of whether or not he was arrested in his home. The district
court correctly held that the state court's decision was neither
contrary to nor involved an unreasonable application of law.
3. Questions Regarding Parker's Statement
Parker maintains that his attorneys failed to
address either the temporal proximity between his first contact with
the officers and his statement, or the effect of his intervening
meeting with Fountain, who was very upset at that time. He also
contends that his attorneys failed to address his impairment at the
time of his statement.
Parker arrived at the Sheriff's Department at 3:35
P.M. “[A] few minutes” after his arrival, he was interviewed by
Hargett and began making a statement at 4:38 P.M. Exh. Vol. 2 at 203,
205. The interview stopped at 5:30 P.M. and Hargett left the room.
Parker was then permitted to visit with Fountain for about three
minutes. She had been interviewed by law enforcement officers and
advised that she needed to cooperate if she wanted to see her baby
again. During her visit with Parker, she had the baby with her and
told Parker that the officers had advised her to tell him that they
believed that she and Parker were involved in a murder, and that Smith
and Williams were “blaming everything on [Parker].” Id. at 236-37,
242-43. At 5:45 P.M., Parker was interviewed by May and, shortly
thereafter, he made his second and inculpatory statement.
During the suppression hearing, the prosecutor
referenced Fountain's meeting with Parker in his summation and
Parker's attorney responded by citing Taylor v. Alabama, 457 U.S. 687,
691-92, 102 S.Ct. 2664, 2667-68, 73 L.Ed.2d 314 (1982). Although this
issue was not specifically addressed on direct appeal, the Alabama
Court of Criminal Appeals did state that it had “reviewed the
testimony” from the suppression hearing and found no error in the
trial judge's admission of his statement. Parker I, 587 So.2d at 1088.
The question of whether a defendant's statement,
given after an illegal arrest and Miranda warnings, “is the product of
a free will ... must be answered on the facts of each case. No single
fact is dispositive.” Brown, 422 U.S. at 603, 95 S.Ct. at 2261. The
relevant factors in making the threshold determination of
voluntariness include the Miranda warnings, “[t]he temporal proximity
of the arrest and the confession, the presence of intervening
circumstances, and, particularly, the purpose and flagrancy of the
official misconduct.” Id. at 603-04, 95 S.Ct. at 2261-62 (internal
citation and footnote omitted). The prosecution bears the burden of
showing admissibility. Id. at 604, 95 S.Ct. at 2262.
The temporal proximity factor is evaluated based on,
inter alia, the length of time between the arrest and the confession
and any intervening significant events. A statement made “several days”
after an illegal arrest is too temporally distant to warrant admission.
Id. at 605 n. 11, 95 S.Ct. at 2262 n. 11. Intervening significant
events may include a lawful arraignment and the release from custody.
See id. The admission of Miranda warnings alone; a short five to ten
minute visitation with friends, one of whom was emotionally upset; or
the issuance of an arrest warrant are not, individually or
collectively, considered significant intervening events. See id. at
602, 95 S.Ct. at 2261 ( Miranda warnings alone); Taylor v. Alabama,
457 U.S. 687, 691-92, 102 S.Ct. 2664, 2667-68, 73 L.Ed.2d 314 (1982) (
Miranda warnings, short visitation, arrest warrant).FN33 Absent
intervening significant events, statements given within two hours to
six hours of an arrest have been suppressed. See Brown, 422 U.S. at
604-05, 95 S.Ct. at 2262 (two hours with no intervening significant
events); Dunaway v. New York, 442 U.S. 200, 203 n. 2, 218-19, 99 S.Ct.
2248, 2252 n. 2, 2260, 60 L.Ed.2d 824 (1979) (less than an hour and no
intervening significant events); Taylor, 457 U.S. at 691, 102 S.Ct. at
2667 (six hours and defendant “was in police custody, unrepresented by
counsel, ... questioned on several occasions, fingerprinted, and
subjected to a lineup”). Exclusionary purpose and misconduct is
demonstrated when the arrest was for “investigatory” reasons and was
effected “to cause surprise, fright, and confusion.” Brown, 422 U.S.
at 605, 95 S.Ct. at 2262 (“investigatory” arrest); Dunaway, 442 U.S.
at 218-19, 99 S.Ct. at 2260 (“investigatory” arrest not cured by
police's lack of threats, and abuse, or “protecti[on] of defendant's
Fifth and Sixth Amendment rights”); Taylor 457 U.S. at 693, 102 S.Ct.
at 2668-69 (“investigatory” arrest not cured by police's lack of
physical abuse or defendant's “voluntary” confession).
FN33. In Taylor, the petitioner was permitted to
have a short visit with his girlfriend and a friend, after he had
signed a waiver-of-rights form and before he confessed. 457 U.S. at
691, 102 S.Ct. at 2667. The girlfriend was, however, “emotionally
upset” after “hearing the officer advise the petitioner to cooperate.”
Id. at 692 n. 1, 102 S.Ct. at 2668 n. 1. The Court noted that the
visit was not only “[in]sufficient to break the connection between the
illegal arrest and petitioner's confession” but may have had the
“opposite effect” on the petitioner's ability to “consider carefully
and objectively his options and to exercise his free will.” Id. at
691-92, 102 S.Ct. at 2667-68.
The state appellate court found that Parker's
claims regarding his arrest at home and the intervening events between
his arrest and his statement were “irrelevant” because probable cause
was established by corroboration of the confidential informant's
information. Exh. PC Vol. 16, Tab 61 at 2. It concluded that he failed
to show prejudice arising out of his counsel's failure to challenge
the temporal proximity or the impact of his meeting with Fountain and
did not show that his attorney was ineffective. Id. The district court
did not err in finding that state courts reasonably applied the law
and that its determinations were not based on an unreasonable
interpretation of the facts.
III. CONCLUSION
Parker filed this appeal seeking federal habeas
relief from his conviction and death sentence for the murder of
Dorlene Sennett. We hold that Parker received effective*1293
assistance of counsel because Parker is unable to show prejudice from
his attorneys' representation during his motion to suppress, at trial,
and at sentencing. The jurors who were stricken from Parker's trial
were not similarly situated with those who were seated. The
prosecutor's comments during his closing arguments, though improper,
did not prejudice Parker and were cured by the trial court's extensive
cautionary jury instructions. There was no evidence that the
prosecution suppressed any evidence regarding their witness, and
Parker was aware that the witness would testify before trial. Probable
cause for Parker's arrest was established when the confidential
informant's information was corroborated by law enforcement officials.
Because Parker is not entitled to relief on any of his claims, the
judgment of the district court is AFFIRMED.