Summary:

The Franklin family, Paul and Judy Franklin and their 10 year old son Paul, were murdered on 6 July 1983.

Paul Franklin was murdered in his house after refusing to sell a vintage 1968 Corvette automobile to Peoples and his cousin, Timothy Gooden. His body was dumped in nearby woods, where his wife and son were also taken and murdered.

Autopsies revealed the boy and his mother were beaten to death with a rifle, but the father's body was too decomposed to determine the cause of death.

Judy Franklin wrote Peoples' name on the top of a clothes hamper with an eyebrow pencil before she and her son were abducted.

Peoples was arrested five days later driving the car, confessed to the murders, and led police to the bodied. Gooden pleaded guilty to capital murder, testified against Peoples, and was sentenced to life without the possibility of parole.

Citations:

Peoples v. State, 510 So.2d 554 (Ala.Cr.App. 1986) (Direct Appeal).
Ex parte Peoples, 510 So.2d 574 (Ala. 1987).
Peoples v. State, 565 So.2d 1177 (Ala.Cr.App. 1990) (PCR).
Peoples v. Campbell, 377 F.3d 1208 (11th Cir. 2004) (Habeas).

Final Meal:

Declined.

Final Words:

"I hope I've handled everything since I've been here with dignity."

ClarkProsecutor.org

Alabama Department of Corrections

Inmate: PEOPLES, JOHN W JR
DOC#: 00Z441
Race: White
Gender: Male
Date of Birth: 01/09/1957
Location: Holman CF (Death Row)
Assigned to Death Row: 12/08/83
County of Conviction: Talladega County

Peoples executed for killing Pell City family for sports car

By Samira Jafari - Tuscaloosa News

AP 09/22/05

ATMORE, Ala. (AP) — Condemned inmate John W. Peoples Jr. flashed a broad grin and gave a thumbs up to his brother before he was executed Thursday for killing a Pell City family of three and driving off in their vintage sports car in 1983.

Peoples, 48, of Talladega, died at 6:27 p.m. CST. He was convicted in December 1983 in the killing of Pell City businessman Paul G. Franklin and his wife, Judy Choron Franklin, both 34, and their 10-year-old son, Paul.

Officials at Holman Prison near Atmore conducted the execution by lethal injection after the U.S. Supreme Court denied Peoples' request for a delay and Gov. Bob Riley turned down his bid for clemency.

Peoples did not look at or offer an apology to relatives of the Franklins, instead thanking his own family for their support. "I hope I've handled everything since I've been here with dignity," he said in his final statement as he faced his brother, Gerry Peoples.

The Franklins' relatives said they were relieved that Peoples was executed, but were surprised at his apparent lack of remorse. "Seemed a lot easier on him the way he died versus the way they died," said Bill Choron, Judy Choron Franklin's brother.

Peoples ate very little in the days before the execution and did not make the traditional request for a last meal, prisons spokesman Brian Corbett said. Peoples spent Thursday morning visiting with several relatives, including his mother, two daughters and son. He left $186.19 to his brother.

In the final days leading up to his execution, Peoples argued that he had a right to die by electrocution, as his original death sentence stipulated, instead of lethal injection, a method Alabama adopted beginning July 1, 2002. He contended there never was a public court proceeding changing the sentence.

The state, in its response to the Supreme Court, said Peoples missed the 2002 deadline to request the electric chair. "He has offered absolutely no justification for the delay," said Assistant Attorney General Beth Hughes in her rebuttal filed Wednesday. State's attorneys also said his sentence — death — was not changed and that his claim was without merit.

The Franklin boy and his mother were beaten to death with a rifle, but the father's body was too decomposed by the time he was found for investigators to determine the cause of death.

Prosecutors say Peoples killed the three because he wanted their 1968 red Corvette, and he was arrested after attempting to sell the car shortly after the killings. Peoples had argued that because he led investigators to the bodies, his attorney should have taken steps to get him a sentence less than the death penalty.

Evidence showed that Judy Franklin wrote Peoples' name on the top of a clothes hamper with an eyebrow pencil before she and her son were abducted. Peoples' cousin, Timothy Gooden, also testified in a plea deal which got him a life sentence with the possibility of parole.

Gooden, who initially testified that he was with Peoples the night of the killings, later claimed investigators pressured him into testifying falsely against Peoples. Gooden was re-indicted for capital murder and, after pleading guilty, sentenced to life without parole.

Last week, relatives of Gooden presented prison Commissioner Donal Campbell with a letter from Peoples in which he insists Gooden was never with him the night of the murders. Peoples' letter, while apparently not asserting his own innocence, says in part that District Attorney Robert Rumsey knew Gooden was not there but still made a deal with Gooden to testify against Peoples.

Relatives of the Franklins had said they did not care if Peoples died by electrocution or lethal injection. Peoples was the fourth death row inmate to die this year and the tenth since the state switched to lethal injection.

High court asked to block execution

By Samira Jafari - The Decatur Daily

AP - September 22, 2005

MONTGOMERY — A condemned inmate convicted of killing a Pell City family of three before driving away in their sports car lost a bid for clemency Wednesday but asked the U.S. Supreme Court to block his execution, set for today.

John W. Peoples Jr., who has argued that he is entitled to die by electrocution instead of lethal injection, filed the petition with the court Wednesday. He contends his death sentence never mentions lethal injection and to execute him without a new court hearing would be unconstitutional. The 1984 court order calling for his death specifies electrocution, which was the method used in Alabama at the time.

The handyman was convicted in 1983 in the murders of Pell City businessman Paul G. Franklin, and his wife, Judy Choron Franklin, both 34, and their 10-year-old son, Paul. The boy and his mother were beaten to death with a rifle, but the man's body was too decomposed by the time he was found for investigators to determine the cause of death.

The Alabama Supreme Court on Tuesday rejected the request to delay his execution, scheduled for 6 p.m. today at Holman prison near Atmore. Gov. Bob Riley also denied Peoples clemency Wednesday afternoon. The petition Wednesday reads in part that "irreparable harm" will result if the stay is denied. The state has said Peoples missed the deadline to request death in the electric chair.

Peoples also argues that his trial attorney failed to take steps to get him a sentence less than death since he directed authorities to the bodies of his victims.

A relative of the Franklins said the family has no opinion on how Peoples should be executed. "It matters not to us whether he gets the chair or not," said Gail Choron, Judy Franklin's sister-in-law, in a telephone interview Wednesday.

ProDeathPenalty.com

A man convicted of murdering a Talladega County couple and their 10-year-old son before taking their vintage Chevrolet Corvette is set for execution on Thursday, 22 years after the killings. John W. Peoples Jr. was convicted in 1983 in the murders of Pell City businessman Paul G. Franklin Jr., wife Judy Choron Franklin, both 34, and Paul Franklin Jr., their son.

Peoples asked the Alabama Supreme Court to block the execution, but no ruling had been issued Monday. The boy and his mother were beaten to death with a rifle, and Peoples led authorities to the spot where their bodies were dumped in a field. The man's body was too decomposed by the time he was found for investigators to determine a cause of death.

A former prosecutor said Peoples, now 48, killed the three because he was after the Fanklins' 1968 red sports car. "He wanted the Corvette, and he got in an argument with Paul Franklin, then he decided he needed to get rid of the witnesses," said Robert Rumsey, a former district attorney who prosecuted Peoples, now 48.

An attorney for Peoples asked the Alabama Supreme Court to block the execution, arguing it should be halted because Peoples originally was sentenced to die in Alabama's electric chair but the state has since changed its preferred method of execution to lethal injection. The head of the state's death penalty appeals office, Assistant Attorney General Clay Crenshaw, said the execution should be allowed to go forward since Peoples could have requested death in the electric chair but didn't.

"If he truly wanted to be electrocuted he could have done that," said Crenshaw. "The default (method) is lethal injection." Peoples' attorney, William C. Cagney of New Brunswick, N.J., did not immediately return a message seeking comment.

Peoples was arrested in the Corvette soon after the slayings. "As far as I'm concerned, it ruined our life. It changed our mother's life. It changed my life because we've lived for this for 22 years. I'm glad it's coming down. He got what he deserved," Judy Franklin's brother, Bill Choron of Foley, told The Birmingham News.

Evidence showed the woman wrote Peoples' name inside a clothes hamper with eye makeup before he abducted her and the boy from their home. Peoples and his cousin, Timothy Gooden, who was with him the night of the killings, were both charged with capital murder.

Gooden testified for the prosecution in a plea deal and received a life sentence with the possibility of parole. Gooden later changed his story and said investigators pressured him into testifying against Peoples, coaching him to tell a fabricated story. He was re-indicted for capital murder, pleaded guilty again, and is serving a term of life without parole.

National Coalition to Abolish the Death Penalty

Do not execute John W. Peoples Jr.! - Alabama - September 22, 2005

The State of Alabama plans to execute John W. Peoples Jr., a white man, on Sept. 22, 2005 for the July 1983 murders of Paul Franklin, Judy Franklin, and Paul Franklin Jr. in Talladega County. Peoples allegedly murdered the Franklins when Paul Franklin refused to sell his Corvette to Peoples.

On advice of his counsel at the time, John W. Peoples Jr. provided the State of Alabama with almost all of the evidence that was used against him at trial. Peoples took authorities to the hidden location of the Franklins’ bodies.

He also took them to the hidden location of the murder weapon and told them about the location of a car where they would discover more evidence. In fact, without Peoples’s cooperation the crime would never have been solved. The additional evidence that the state based its prosecution on was the admittedly perjured testimony of co-defendant and alleged accomplice Timothy Gooden.

John W. Peoples Jr. also suffered from ineffective counsel at the time of his trial. In a summation statement at the guilt phase of Peoples’s trial, defense counsel told the jury that if they found Peoples guilty they would have “no option” but capital punishment. Clearly such a statement by defense counsel may lead to an improper verdict at the sentencing phase.

In addition to his error at the guilt phase of the trial, Peoples’s attorney failed Peoples in the sentencing phase of the trial. During this important phase of Peoples’s trial his attorney called to the stand a witness whose testimony clearly indicated that he believed that if someone had committed the crime for which Peoples was convicted then that person should be executed. In other words, a witness for the defense testified at sentencing that the defendant should be convicted. Evidently Peoples has not been adequately represented.

Furthermore, the Alabama Circuit Court denied motions for change of venue based on the publicity that the case had received locally. Another factor that raises questions about whether Peoples’s jury was impartial is the fact that the Alabama Circuit Court allowed Jimmy Chastin to remain a juror.

Although Chastin was a reserve Talladega County Deputy Sheriff who rode along with law enforcement authorities during the investigation of the location of the Franklins’ bodies, he remained on the jury that would decide both Peoples’s guilt and his sentence. The possibility that Chastin could be considered impartial at the guilt phase of the trial is unlikely.

Also important is the report that while Peoples was in jail, the state seized a tape recorder that Peoples used for communication with his attorney, violating attorney-client privilege.

The failures of John W. Peoples Jr.’s first attorneys were extensive. His jury pool could certainly not be considered impartial. John W. Peoples Jr. has no significant history of prior criminal activity and his constitutional rights were repeatedly violated throughout the investigation and trial.

Please write to Gov. Bob Riley requesting that he stop the execution of John W. Peoples Jr.

Amnesty International

16 September 2005 - USA (Alabama) - John W. Peoples Jr, white (m)

John W. Peoples Jr. is scheduled to be executed by lethal injection in the State of Alabama on 22 September. He was sentenced to death in January 1984 for the murder of Paul and Judy Franklin and their son, Paul Jr, in Talladega County.

There are doubts about the competency of the lawyer who represented him at the trial at which he was convicted. His alleged accomplice was convicted of the same murders but sentenced to life imprisonment.

The Franklin family were murdered on 6 July 1983. According to evidence presented at the trial Paul Franklin was murdered in his house after refusing to sell a car to John Peoples Jr. and his cousin, Timothy Gooden. His body was dumped in nearby woods, where his wife and son were also taken and murdered.

John W. Peoples Jr. was arrested five days later, and confessed to the murders without a lawyer being present. Timothy Gooden also pleaded guilty to capital murder and was sentenced to life without the possibility of parole.

John Peoples Jr’s current legal team argue that, despite his full cooperation with the law enforcement agencies, at the sentencing phase of the trial his then lawyer did not offer any mitigating evidence and explicitly told the jury that no alternatives to execution existed in the punishment phase. Timothy Gooden was also brought as a defense witness and testified in favour of execution.

Amnesty International opposes the death penalty in all cases, regardless of questions of guilt or innocence. The death penalty is a symptom of a culture of violence, not a solution to it. It has not been shown to have a unique deterrent effect, denies the possibility of rehabilitation, carries the risk of irreversible error as well as inconsistent and discriminatory application, and consumes resources that could be used to fight violent crime and assist those affected by it.

Today, 120 countries are abolitionist in law or practice. In the USA the capital justice system is marked by arbitrariness, discrimination and error. Since the USA resumed executions in 1977, it has carried out 982 executions, 33 of which were carried out in Alabama. There are 191 people on death row in Alabama.

In Alabama the Governor has sole authority to grant clemency in death penalty cases.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible, in English or your own language:

- expressing sympathy for the relatives and friends of the Franklin family, and explaining that you are not seeking to excuse the manner of their deaths or to minimize the suffering caused;

- stating that the death penalty has not been shown to have a unique deterrent effect, denies the possibility of rehabilitation, and consumes resources that could be used to fight violent crime and assist those affected by it;

- opposing the execution of John W. Peoples Jr, and urging the Governor to grant clemency to him.

Peoples v. State, 510 So.2d 554 (Ala.Cr.App. 1986) (Direct Appeal).

Defendant was convicted in the Circuit Court, Talladega County, Jerry L. Fielding, J., of various charges relating to murder of family, and he appealed. The Court of Criminal Appeals, Taylor, J., held that: (1) defendant was not entitled to change of venue; (2) veniremen did not have to be stricken for cause; (3) defendant was not prejudiced by prosecutor's remark during jury selection; (4) defendant's arrest was proper and evidence seized pursuant to that arrest was not "fruit of poisonous tree;" (5) bodies of victims would have been discovered through independent source; (6) defendant had waived right to counsel and confession was admissible; (7) trial court was required to give instruction as to defendant's right not to testify; and (8) death penalty was properly imposed. Affirmed. Judgment affirmed, Ala. 510 So.2d 574.

TAYLOR, Judge.

The defendant, John W. Peoples, Jr., was indicted by the Talladega County Grand Jury on August 3, 1983, in a five-count capital murder indictment. Count one charged murder of two or more persons, namely, Paul G. Franklin, Sr., and Judy C. Franklin, by one act or pursuant to one scheme or course of conduct, a violation of § 13A-5-40(a)(10), Code of Alabama 1975 . Count two charged murder of Paul G. Franklin, Sr., during the kidnapping in the first degree of said person, a violation of § 13A-5-40(a)(1), Code of Alabama 1975 . Count three charged murder of Paul G. Franklin, Jr., during the kidnapping in the first degree of said person, a violation of § 13A-5-40(a)(1), Code of Alabama 1975. Count four charged murder during a burglary in the first degree, a violation of § 13A-5-40(a)(4), Code of Alabama 1975. Count five charged murder during a robbery in the first degree, a violation of § 13A-5- 40(a)(2), Code of Alabama 1975.

In July 1983, 34-year-old Paul Franklin, Sr., his wife Judy, and their 10-year-old son Paul, Jr., resided near Pell City in St. Clair County. They lived in a house on a peninsula that extends into Lake Logan Martin. Mr. Franklin owned several personal vehicles between 1980 and 1983, having as many as five at one time, including a red 1968 Chevrolet Corvette.

In July 1983, Mr. Franklin had in his employ a tutor for his son, who had been employed for the summer months, and a housekeeper, who came regularly and who had been doing so for three years. Paul Franklin's wife, Judy, scheduled an appointment for 9:00 a.m., July 7, for Paul, Jr., for a session with his tutor. However, the whole family, along with the red Corvette, disappeared from their lake home sometime on the night of Wednesday, July 6, 1983. Mr. Franklin's mother, with whom he had an extremely close relationship, lives in Birmingham, and the two of them would talk by telephone "every" day. They had such a conversation on July 6, at about 6:30 p.m., and again for five minutes at about 8:30 p.m.

The next morning, July 7, 1983, the housekeeper arrived as arranged and found the house was not locked. When the housekeeper entered the house, she found no one home. She found the lights and the color televisions turned on. The family dog was "laying" in the washroom. She began her housekeeping chores, during which the telephone rang; the call was from Mr. Franklin's mother.

This was between 8:30 and 9:00 a.m. After talking with the mother, the housekeeper returned to her duties. While getting the mop and pail, she discovered that Mr. Franklin's Buick Regal was downstairs in the garage. This was unusual, because inside the garage was where the red Corvette was kept "fastened up all the time"; the Buick was normally parked outside.

The housekeeper noted a puddle of oil where the Corvette was supposed to be. This observation was "a little after nine o'clock."

After mopping, the housekeeper proceeded with her cleaning. Under the bed in the marital bedroom, she found Mr. Franklin's pants folded in his usual but peculiar manner; however, they still contained his keys, billfold, and money clip. Then she noticed the bed in the guest bedroom was unmade, which was unusual. She began vacuuming when "a voice" told her, "Rosa, get the hell out of here and now," whereupon she "dropped everything right then and there" and left.

Mr. Franklin's mother arrived at the residence about 2:00 o'clock that afternoon, and found no one home and the doors not locked. Mr. Franklin was supposed to have made arrangements for his mother's car to be serviced at a local garage, but when she telephoned the garage from the residence, she found that her son had not made the appointment.

Nevertheless, the servicemen did come get her car and service it. Meanwhile, the mother waited at the residence, hoping her son and family would return. Then she began calling family members--her other son in Georgia and Judy Franklin's mother in Birmingham. She also called the sheriff's office.

Judy Franklin's mother arrived at the residence about 7:00 p.m., and a sheriff's deputy arrived a short time later. The mother noticed her daughter's purse on the kitchen bar. She also saw clothes hanging on a dresser; they were the clothes that her daughter had been wearing the previous day.

The deputy made a "short investigation," staying there about an hour and a half getting information and determining if anything was missing. Based on this investigation, the deputy put out a police broadcast that the family was missing, and later that night when he obtained a tag number for the missing Corvette, he had a report of the missing car entered in the National Crime Information Center (N.C.I.C.).

Paul Franklin's mother and Judy Franklin's mother were instructed to remain in the house until Sunday afternoon, July 10, 1983. When they left, they gave the authorities a house key.

The authorities blocked the driveway to the house on the night of July 8. That night, Officers Marvin Roye and Ed Traylor of the Alabama Bureau of Investigation, and Investigator Owen Harmon, of the St. Clair Sheriff's Department, continued the investigation at the residence. Officer Roye "spent a great deal of time [that night] with the family going over the family history and information--where would they go and where would they have gone and what their activities were and things of this nature."

The officers also looked around and through the house, "looking for things like broken out windows, forced entry, and any kind of destructive type thing." They also checked to see if any family luggage was gone. In the basement where the Corvette was usually parked, Officer Traylor noted an oily shoeprint from a shoe or boot that had a "vibram lug type sole." The two mothers "knew basically where things were, but it was a very difficult task to make some determination if there was anything missing."

On Sunday, July 10, 1983, further investigation at the Franklin residence disclosed the name "John Peoples" written in eyebrow pencil on the top of a clothes hamper in the bathroom. The name was covered by a piece of toilet tissue lying over the name and the end of a towel on a towel rack draped over the clothes hamper. Judy Franklin's mother recognized the handwriting as being Judy's. It was determined that the name had been written there after July 2, 1983.

Mr. Franklin's mother then informed the officers that John Peoples was someone she knew and that he had worked for her son around the house. She also told them John Peoples had borrowed money from her son in the past and had lately been trying to borrow more money. She also described him as being a "big robust type fellow, a big man."

The next morning, Monday, July 11, 1983, the officers learned that on the previous Friday, a large man named John Peoples had attempted to sell a red Corvette with a "59 tag" to Regal Pontiac Company in Sylacauga. He was described as being about 6'4"" and weighing 240 pounds.

On July 11, 1983, Childersburg Police Chief Ira Finn received a telephone call from a Childersburg druggist concerning a man being at the drug store trying to sell a red Corvette. Chief Finn knew the car was listed "on the N.C.I.C. machine," and when he gave the druggist the tag and registration numbers of the car, the druggist told him that was the car the man at the drug store was trying to sell. Chief Finn notified officers to go to the drug store.

Assistant Police Chief Lewis Finn arrived at the drug store at about 1:29 p.m., where he found the appellant and the red Corvette. The officer walked in the drug store and asked Peoples if the car was his, and he replied that it was. Outside, the officer informed the appellant he would have to come to the police station. The appellant was allowed to drive the Corvette to the station while officers followed in a police car.

At the police station, the appellant was taken into Chief Finn's office, and Chief Finn told him the Corvette had been reported stolen from Pell City and that the three family members were missing. The appellant replied, "Well, by god, I didn't steal the car. I've got a bill of sale for it." He then threw a piece of paper on the chief's desk.

The chief looked at it without picking it up, and replied, "Well, that ain't too much of a bill of sale. It's not notarized." The appellant responded, "Well, I've got a goddamn tag receipt," and he threw another piece of paper on the desk. He was then told he would have to wait until the arrival of A.B.I. officers, whom Chief Finn had already notified.

Upon receiving the call in Talladega from Chief Finn, St. Clair Deputy Sheriff Owen Harmon and A.B.I. Officer Ed Traylor immediately drove to Childersburg. They arrived at the Childersburg police station around 2:15 p.m., about 20 minutes after the appellant had been brought in. The officers talked to Chief Finn for some 20 to 30 minutes.

Chief Finn gave the officers the purported bill of sale. The entire handwritten document reads: "I Paul Franklin trade John Peoples one 1968 Corvette for 50 percent ownership of the C.J. Supper Club. "/s/ Paul G. Franklin /s/ John W. Peoples /s/ Judy Franklin "1946785406573 59A7093 59-5560"

However, the man who actually owned C.J. Supper Club, one Curtis Jackson, came to the police station and told the officers the supper club belonged to him and that the only right, title, or interest the appellant had in the supper club was "operating rights from June the 15th to July the 15th."

The appellant was given a Miranda warning at about 2:45 p.m.; at that point, he had been at the police station about an hour and 15 minutes. He told the officers he understood his rights. While the officers were questioning the appellant, attorney Ray Robbins telephoned.

Officer Traylor first talked with the attorney, and the attorney told the officer that the appellant's father had contacted him and "he just called to see what was going on with" the appellant.

The appellant then talked to the attorney, and told him that he "didn't need him or an attorney at that time, that [the officers] were talking to him about the car that he had purchased from Paul Franklin, and that if he decided he needed him later he would call him back." After talking with the attorney, the appellant gave the officers a statement in which, apparently, he admitted he and an individual named Timothy Gooden had in fact gone to the Franklin residence on the night of July 6, 1983, in his Toyota pickup truck, but that they left the Franklins at home alive and well about 12:00 or 12:30 that night.

Then the officers asked him if he would give them permission to search "his Toyota pickup he was riding in when he went over to Paul Franklin's residence." The officers also asked him for permission to search both his residence in Talladega and the Corvette. He said "that would be fine."

A permission to search form was then read to the appellant, which informed him he had the right to refuse to allow the searches. At approximately 4:30 p.m. on July 11, 1983, he signed the permission to search form.

He then left the Childersburg police station with the officers, taking them to his father's residence, where the officers searched his Toyota pickup truck. Nothing was taken from the truck. Next, they went to his apartment in Talladega, where he unlocked the door for the officers.

Upon searching the apartment, in a dirty clothes box, the officers found a shirt and a pair of pants that appeared to have bloodstains on them. When the officers found the clothes, the appellant "just slid down the wall and was kind of sitting on his heels." When confronted with the apparent bloodstains, he said they were from barbecue sauce "that he got on there on the 4th of July when he was barbecuing down at the club." However, "at this point, John got very nervous and upset. He started sweating just around the lower part of his chin, sweat was just a-dripping off."

Upon arrival at the St. Clair County Jail in Pell City at 9:00 p.m., on July 11, the appellant was again given a Miranda warning. He also was read a waiver-of-rights form, which he read and signed. He was then interviewed until about 1:30 a.m., at which time the decision was made by the assistant district attorney of St. Clair County to formally place him under arrest for theft by deception of the Corvette.

He was wearing "what appeared to be pigskin type boots with a vibram lug type sole," similar to the shoeprint found in the Franklin home. Therefore, before he was locked up for the night, the officers asked him for the boots he was wearing; he took them off and gave them to the officers.

The next morning, July 12, Officer Owen Harmon appeared before a magistrate and swore out a theft warrant, which was later read to the appellant. Bond was set at $25,000. Sometime after the warrant had been read to the appellant on the morning of July 12, he sent a note to the officers requesting that they come and talk to him, that it was "important."

Officer Marvin Roy responded and again read him the Miranda warning. The appellant then made a statement to the effect "he could clear this thing up about 90 percent" and that he "could furnish ... two names." However, he said he wanted to wait until his lawyer arrived before he furnished the information.

The attorney, again Ray Robbins, arrived about noon, and, after talking with the appellant, told the officers that his client "didn't have anything that would help [them]." Routine mugshots and fingerprints were made that afternoon.

The attorney returned the next day, July 13, about noon, to participate in an interview of the appellant's wife. After that interview, a discussion ensued between the attorney and Assistant District Attorney Dennis Abbott.

This discussion lasted somewhat less than an hour and was prompted by an earlier request by the appellant that he be allowed to take a polygraph test. Up until this point, his statements were that he had purchased the Corvette from Paul Franklin and had left the Franklins alive and well at about midnight the night of July 6, and that he was not involved in their disappearance.

According to Mr. Abbott, in this discussion the appellant's attorney told him (Abbott) that the appellant "had already told us all that he knew and there might be one or two little things that we didn't already know, but it wouldn't help us any in our investigation." Mr. Abbott then asked the attorney if he would recommend that his client take a polygraph test, which the appellant had previously requested.

Based on the appellant's prior statements, Mr. Abbott's offer was that if a polygraph test confirmed that he was being truthful, the appellant could post bond, a preliminary hearing would be set, and, if there were no further incriminatory developments, he would "probably walk" after the preliminary hearing because there would not be sufficient evidence to bind him over to the grand jury.

The appellant's attorney then stated that he would recommend that his client take the polygraph test, because he believed his client was telling the truth. This ended that discussion.

At about 5:00 p.m. on July 13, about 30 minutes to an hour after leaving Mr. Abbott, the appellant and his attorney were brought from the county jail to the sheriff's office. The lawyer told Officer Marvin Roy that the appellant had some information to add to his prior statement. Then, in the presence of his attorney and Officers Harmon and Traylor, the appellant stated that the Franklin family was dead.

Officer Traylor then asked the appellant if he would take them to the bodies. Mr. Abbott was called to come to the sheriff's office, and when he arrived, Peoples's attorney said, "John Peoples is going to tell ya'll some more. All of them are dead." The appellant then took the police to the bodies of the Franklin family in Talladega County, in a wooded area just off County Road 377.

The officers found lying near the bodies unexpended rounds of .22 caliber rat shot. They also found a gun sight elevator. Mud-grip tire tracks were found leading off the paved road, and a "mashed" path of grass indicated that the body of Paul Franklin, Sr., had been dragged through the grass.

Also, the bottoms of the yellow pajamas he was wearing were pulled down around his ankles, consistent with his body having been dragged. Both Judy Franklin and Paul Franklin, Jr., had been blindfolded. The bodies were all in the same stage of advanced decomposition.

The skull of Judy Franklin had been fractured: "There was a large fragmented skull fracture 4 1/2 by 4 inches in diameter. There were ten separate pieces of skull in this area." She had been also shot: "The upper arm near the armpit on the right showed a perforated wound going from this arm through the arm and a few perforations were present in front of her armpit in this area. Went through the robe and skin and soft tissue in this area and minute, very small pellets were recovered from the wound." In the opinion of the pathologist, Judy Franklin died from blunt force trauma due to a blow to the head.

The skull of Paul Franklin, Jr., was also crushed. There was a "large fragmented skull fracture in the back of the left side of the head ... virtually the entire left side of the head ... [an] area 6 1/2 by 4." The skull fracture was very similar to the skull fracture of Judy Franklin, and there were approximately 15 fragments in the fractured area. The impact side of the child's skull was a patterned injury.

In the pathologist's opinion, the injury to the child's head was consistent with having been inflicted by the rifle the appellant had shown the two deputies. The pathologist was of the opinion the child died from blunt trauma to the skull.

Based on a hypothetical question involving the circumstances of the disappearance of the Franklin family and the family being found in the woods with two members dead from blunt force injuries to the head, the pathologist was of the opinion that the manner of death of Paul Franklin, Sr., "was not accident or natural or suicide."

On the night of July 14, Talladega County District Attorney Robert Rumsey went to St. Clair County and talked with Mr. Abbott, an assistant district attorney for St. Clair County, and with investigating officers, in an effort to determine in which county venue would be proper. During this discussion, Mr. Rumsey first learned that a polygraph test had been tentatively scheduled for July 15 in Gadsden.

On July 15, 1983, the appellant's attorney brought a document to the St. Clair district attorney's office and asked Mr. Abbott to sign it. Abbott refused to sign the document because it did not accurately reflect their July 13th discussion regarding the polygraph test. Specifically, Abbott said the document was inaccurate because 1) it referred to a discussion of the appellant's taking the authorities "to the bodies and that was never discussed," and 2) it referred to the lawyers' talking about the appellant's making a further statement; however, Mr. Abbott never asked the appellant's attorney to request that the appellant say anything else.

Then the appellant's attorney began talking about "going to the polygraph and going ahead and taking it and what was going to happen if he took it and so forth." At this point, although the officers had been taken to the bodies, the appellant had not admitted any involvement in the disappearance or murders of the Franklin family. Mr. Abbott then told Peoples's attorney, "Ray, take him up there and let him take it, and if he passes it, then we'll talk."

Mr. Rumsey arrived in Gadsden at about 2:30 on July 15. He had a 30- to 40- minute discussion with the appellant's attorney concerning the details of giving the appellant a polygraph examination. Toward the end of this discussion, the attorney showed Mr. Rumsey the document purporting to reflect an agreement with Mr. Abbott about the polygraph examination.

The appellant's attorney represented to Mr. Rumsey that an agreement such as that reflected in the document had been reached. This was the first Mr. Rumsey had heard about any "agreement." At this point, he told the attorney that any polygraph examination was off until he could enlighten himself about the "agreement" just shown to him.

Mr. Rumsey then telephoned Mr. Abbott, who told him no such agreement had been made; and when defendant's attorney talked to Mr. Abbott on the phone, he said, "You're right, Dennis, this does not correctly state our agreement." When the telephone conversation was over, Mr. Rumsey asked Peoples's attorney if the document correctly stated an agreement with Mr. Abbott, and the answer was, "No." Mr. Rumsey wanted to postpone the polygraph test until he could meet with all persons involved who knew anything about the so-called agreement, but defense counsel began urging that the polygraph test be given that day. Mr. Rumsey relented, and the polygraph test was given that afternoon.

At 5:18 p.m., Officer Jimmy Flanagan, a polygraph examiner with the Gadsden Police Department, advised the appellant of his Miranda rights in the presence of the latter's attorney. The appellant signed a waiver-of-rights form, and it was witnessed by his lawyer. The questions to be asked during the polygraph test had been reviewed and approved by Peoples's attorney and by another polygraph examiner retained by the defense. Officer Flanagan had only four questions (termed "relevant questions") he planned to ask regarding the deaths of the Franklin family, all of which called for "yes" or "no" answers.

Those questions were: 1) Did you take the Franklin family from their house that night? 2) Did you hit Judy Franklin in the head last week? 3) Were you physically present when Judy Franklin was hit? 4) Do you know for sure who hit Judy Franklin? When the examiner asked those four questions, the appellant refused to answer any of them. The examiner then terminated the test.

After refusing to take the polygraph test on July 15, the appellant was returned to the St. Clair County Jail. At about 8:30 p.m. on July 19, 1983, he sent the following note to the sheriff of St. Clair County: "To whom it may concern I John Peoples are asking to see the sheriff of St. Clair County on the date of July 19, 1983 it is important and he is the only one I will talk to. Thank you "/s/ John W. Peoples Jr. "In reference to case that your working on."

When St. Clair County Sheriff Lewis Brown went to the jail, the appellant indicated he also wanted to talk to Talladega County Sheriff Jerry Studdard. Sheriff Studdard was summoned to the jail. First, Sheriff Brown told the appellant to call his lawyer and got the number for him. This was between 8:30 and 9:00 p.m.

The appellant then placed the call, but was unable to contact his attorney and told the two sheriffs his attorney was not at home. Sheriff Brown then told him to call another attorney, and so he said he wanted to call attorney George Sims. Sheriff Brown then called information and got George Sims' home telephone number. When the appellant was given the number, he said, "Well, that's all right, I don't need a lawyer. I'll just talk to y'all."

At this point, Sheriff Brown began advising the appellant of his Miranda rights. The appellant interrupted, saying, "[Y]ou don't have to read those rights, I've probably had those rights read to me over a thousand times." Nevertheless, Sheriff Brown read the entire warning, then asked again if he wanted to call a lawyer. The appellant answered, "No, I don't want to call a lawyer, I just want to talk to ya'll. I don't want you taping anything or I don't want ya'll writing down any kind of statement, I just want to talk to ya'll." He was asked if he understood his rights, to which he said, "Yes." He was then asked, "Having these rights in mind, do you wish to talk to us now?" He replied, "Yes, I do."

The sheriffs then talked to the appellant and asked him to write a statement. He then wrote out a statement and signed it on a form that contains both a Miranda warning and a waiver of rights. The statement reads: "The case I am in I did do it. Concerning the Franklin family I did do it." After he had written the statement and signed it and it had been witnessed by the sheriffs, he said, "Man, I am glad I told somebody that. It's really a load off my shoulders. I am really glad I told you." The statement was admitted into evidence at trial.

On July 22, 1983, the appellant was removed from St. Clair County and transported to the Talladega County Jail. During the Talladega jail booking procedure, the appellant said to Deputy Terry Brewer, "Terry if you'll get [Deputy] Ricky [Daniels], I'll show ya'll where the gun is." Deputy Brewer got Deputy Daniels, and they took the appellant across the street to an investigator's office, where they met with Sheriff Studdard. He was again given a Miranda warning, and he said he understood his rights and signed the waiver-of-rights form. He also wrote on the form: "I already have a lawyer, but I do not wish to talk to him or have him present with me at this time." He then took the officers "out in the Brecon area" and showed them a gun wrapped in a towel and concealed in some bushes. The gun was bent and broken.

Timothy Gooden, the appellant's third cousin and co-defendant, was interviewed by Dennis Abbott, the assistant district attorney for St. Clair County, on the night of July 11, 1983. (Earlier that day, the appellant had been arrested, and had told the officers that he and Gooden had been at the Franklins' residence.)

On July 15, Gooden directed officers to the location where the bodies of the Franklin family had been found two days earlier under the guidance of the appellant. He knew the proper location because he had accompanied the appellant the night of the murder. At trial he was called by the State, and testified that when he came home from work on Wednesday, July 6, his wife gave him a message from the appellant, so he went to the appellant's house. There Gooden asked the appellant if he was "going to get the car that day." The appellant said, "yes," and he told Gooden he would pick him up "around dark."

About 8:00 or 8:30 p.m., the appellant picked up Gooden in the appellant's Toyota pickup truck which has large mud-grip tires. The two then drove to the Franklin residence. At the Franklin residence, the appellant got out, and Gooden left in the truck and went to a nearby store and bought cigarettes. Gooden then drove back to the Franklin residence and knocked on the door, which was answered by the appellant. Gooden went in and had a seat. The appellant sat at a table with Mr. and Mrs. Franklin "with a bunch of papers on the table with a notebook pad."

The appellant got up, asked Gooden to sit there with the Franklins, and he "went to the back of the house." Then he returned accompanied by "the little boy." He asked Mr. Franklin "about selling the car," and Mr. Franklin told him he was going to keep "the car" for the little boy for when he grew up. At this, the appellant "got kind of pissed off about it," and again asked Mr. Franklin to sell him the car. Again, Mr. Franklin declined. He then "went to the back room and when he come back, he had some sheets or towels and a rifle in his hand."

Then the appellant gagged and blindfolded Mrs. Franklin and the boy, and while Gooden watched them, the appellant took Mr. Franklin downstairs. When Gooden heard a commotion downstairs, he started down the stairs with Mrs. Franklin and the boy. At this point, Mrs. Franklin "nudged" Gooden in the side, and when he took her gag off and asked, "What's wrong," she said she wanted to go to the bathroom. Gooden let her go to the upstairs bathroom while he stood at the end of the hall, and when she came out, he took her and the boy back downstairs after replacing her gag and blindfold.

Downstairs, Mr. Franklin was lying on the floor by the pool table in the big family playroom. The appellant then told Gooden to go get the truck and bring it "to the basement door where the Corvette was sitting." While Gooden got the truck, the appellant "got some blankets and stuff and throwed a blanket over the man."

The hands of Mrs. Franklin and the boy were then tied, and they were locked in the truck. Gooden and the appellant then "pushed the car out and jumped the car off," and the appellant "put the man in the car with the blanket over him and [appellant and Gooden] left."

According to Gooden, they then "came back to I-20, came back up to 77, come down 77 to Jackson's Trace" and "pulled off in a wooded area." The appellant then dragged Mr. Franklin from the car, dragging him backwards in a "bear hug," and then he came back out of the woods. "John walked up and he got the woman and little boy out of the truck. She started asking John, said, what are you doing. He said it didn't matter, like that. They went down in the woods and the woman was crying and begging John, saying please don't...." Gooden also testified that he heard a gunshot and the woman still screaming, and "a few minutes later, everything got quiet."

When the appellant re-emerged from the woods, he told Gooden "to meet him over there where he used to run a store on 77." The appellant then put the gun and blanket back in the Corvette and left. Gooden complied and later met the appellant at the specified location. The two then returned to the Franklin residence, where the appellant went in and stayed for about 10 or 15 minutes before coming out carrying a telephone and two drinking glasses. The two then returned to the pickup truck.

Gooden drove the pickup truck home, and appellant and his wife went to Gooden's home about 2:00 a.m. to get the truck. Appellant showed Gooden some money, which Gooden counted--in excess of $1,100-- and then gave back to appellant. Gooden did not get any of the money, and when Gooden gave appellant the truck keys, the appellant said, "I'll fix you up later." Gooden "didn't see him no more after that."

* * *

We have searched the record as required by Rule 45A, A.R.A.P., and have found no error which adversely affected the rights of the appellant. The sentence of death was proper in this case. Therefore, the judgment of the trial court is due to be, and it is hereby, affirmed.

FINDINGS OF FACT IN REGARD TO THE PUNISHMENT PHASE OF THE TRIAL

The State proved beyond a reasonable doubt and to a moral certainty that the *573 defendant committed murder during a robbery in the first degree, or an attempt thereof, committed by the defendant, and murder by the defendant during a burglary in the first degree, or an attempt thereof committed by the defendant, and murder by the defendant during a kidnapping in the first degree, or an attempt thereof committed by the defendant and the Court so finds.

The State had proven the defendant guilty of 4 provisions of the Capital punishment offenses as set out in Section 13A-5-40, being murder by the defendant during a robbery in the first degree, or an attempt thereof, committed by the defendant, murder by the defendant during a burglary in the first degree, or an attempt thereof, committed by the defendant, murder by the defendant during a kidnapping in the first degree or an attempt thereof, committed by the defendant and murder of two people by the defendant by one act or pursuant to one scheme or course of conduct.

The defendant offered little evidence of mitigating circumstances as provided in Sections 13A-5-51 nor 13A-5-52. At the conclusion of the sentence hearing the jury returned a verdict recommending that the defendant be punished by death. The vote was 11 for death and 1 for life without parole.

The Court finds that the conduct of the defendant constituted a brutal, aggravated, merciless, and intentional killing of a man, his wife, and their 10 year old child, and that the recommendation of the jury as to the punishment to be imposed was fully justified by the facts and circumstances of the case and the aggravating circumstances outweighed the mitigating circumstances proved by the defendant.

The Court further finds that the sentence of death was not recommended by the jury under influence of passion, prejudice, or any arbitrary factor. The Court finds that the defendant and the victims, Paul Franklin, Sr. and Paul Franklin, Jr., were male caucasians, and the victim Judy Franklin, was a female caucasian. The Court further taking judicial knowledge of the proceedings conducted before it finds that the composition of the jury trying the defendant in this case was as follows: two white males, eight white females, one black male, and one black female. Done this 27th day of January 1984.

Ex parte Peoples, 510 So.2d 574 (Ala. 1987).

Defendant was convicted of capital murder and he appealed. The Court of Criminal Appeals, 510 So.2d 554, affirmed. After granting certiorari as a matter of right, the Supreme Court, Steagall, J., held that: (1) police possessed reasonable suspicion justifying investigatory stop, and (2) evidence found at crime scene was properly admitted. Affirmed.

Peoples v. State, 565 So.2d 1177 (Ala.Cr.App. 1990) (PCR).

After defendant's conviction for various offenses relating to murder of family were affirmed on direct appeal, 510 So.2d 554 and 510 So.2d 574, defendant filed motion for postconviction relief. The Circuit Court of Talladega County, Jerry Fielding, J., denied relief, and defendant appealed. The Court of Criminal Appeals, Tyson, J., held that: (1) defendant was not denied effective assistance of trial counsel by virtue of counsel's failure to obtain written agreement concerning polygraph examination, and (2) defendant was not entitled to relief based on newly discovered evidence in form of state witness' recantation of his trial testimony. Affirmed.

TYSON, Judge.

John W. Peoples, Jr. appeals from the denial of his petition seeking post-conviction relief under Rule 20, Alabama Temporary Rules of Criminal Procedure. This petition was denied by the trial court after the appointment of counsel and the conducting of a full evidentiary hearing thereon by the trial judge.

On the night of Wednesday, July 6, 1983, Paul G. Franklin, Sr., Judy C. Franklin and Paul G. Franklin, Jr., disappeared from their home. On August 3, 1983, in a five-count capital murder indictment, John W. Peoples, Jr., was charged with the capital murder of two or more persons. The appellant was found guilty as charged in the indictment and the cause was then appealed to this court, which affirmed same in an opinion reported as Peoples v. State, 510 So.2d 554 (Ala.Crim.App.1986).

The cause was then taken to the Supreme Court of Alabama which affirmed this court in an opinion reported as Peoples v. State, 510 So.2d 574 (Ala.1987). Peoples's attorneys then filed a petition for writ of certiorari in the United States Supreme Court which denied that petition on November 2, 1987, Peoples v. Alabama, 484 U.S. 933, 108 S.Ct. 307, 98 L.Ed.2d 266 (1987).

Peoples then filed his petition seeking post-conviction relief in the Circuit Court of Talladega County. A full evidentiary hearing, directly on the merits of the issues presented, was conducted with appointed, experienced counsel to assist him. There were some thirteen issues presented to the trial court which has made express written findings. These findings are herein adopted as Appendix A to this opinion and approved in this opinion.

* * *

NEWLY DISCOVERED EVIDENCE

In paragraph 12(E) of the Rule 20 petition, Peoples claimed that newly discovered evidence existed, in the form of Timothy Gooden's recantation of his trial testimony, which entitled him to a new trial. At the Rule 20 hearing, Peoples called Gooden, Gooden's father, and George Sims as witnesses. Respondents called Robert Rumsey, C.J. Hallmark, and Jerry Studdard. Based on all the testimony and the demeanor of the witnesses, the Court finds that Gooden was not a credible witness at the Rule 20 hearing. Peoples's remaining witnesses did not support his claim and one, George Sims, contradicted Gooden's testimony. The Court finds that Sims and the State's witnesses were credible. At the Rule 20 hearing, Gooden recanted his trial testimony and claimed that he had been forced to testify against Peoples. Gooden testified that, while he took Peoples to the Franklin home on July 6, 1983, he left Peoples there and did not go in the house. Gooden denied having any knowledge of the Franklins' murder. Gooden denied going with Peoples and the Franklins to the murder scene.

Gooden claimed that he testified falsely at Peoples's trial. He explained that he did so because he had been threatened by District Attorney Rumsey, Sheriff Studdard, and police officers, including C.J. Hallmark. He said that Rumsey threatened to prosecute him for capital murder if he did not cooperate. He said that Studdard, Hallmark, and others threatened to physically abuse him. Gooden claimed that he was afraid he would be beaten because he had been beaten by deputies, including Hallmark, in 1978.

Gooden admitted giving two statements, Petitioner's Exhibits 2 and 3, which conformed to his Rule 20 testimony, but denied giving two other statements, Petitioner's Exhibits 4 and 5, which incriminated him along with Peoples. Gooden testified that after his arrest he was taken to the Franklins' home in St. Clair County and that Studdard and Rumsey dictated a statement for his signature. Gooden also claimed that he did not take the authorities to the murder scene but rather was shown the scene by Studdard and Rumsey. Gooden said that Rumsey and George Sims, who was Gooden's lawyer, told him what to say at Peoples's trial. Gooden said that he had told Sims he was innocent but that Sims had not believed him.

As evidenced by Petitioner's Exhibit 1, Gooden pleaded guilty to robbery of the Franklins and was sentenced to life. At the time of the plea, Gooden was informed that his agreement with the State was conditioned on his truthful testimony and continued cooperation with the State in any future proceedings. The Court found that Gooden's plea was voluntary. Gooden later appealed his plea and it was affirmed.

George Sims was appointed to represent Gooden on the Franklin murders. When he first talked to Gooden, Gooden claimed to be innocent but Gooden later admitted his involvement in the Franklin murders. Gooden never told Sims that he had been threatened or abused.

Based on his twelve years of practice, Sims did not find it unusual for a defendant to change his story from an initial protestation of innocence to an admission of guilt. Sims and Rumsey negotiated a plea agreement in Gooden's case the night before Gooden testified. Rumsey told Gooden that he would be prosecuted for capital murder if he did not tell the truth. Sims did not tell Gooden what to say in his testimony and neither did Rumsey.

Gooden's father, Millard Gooden, testified that in 1979 he was called to the Talladega County Jail to pick up his son. He testified that his son had been beaten and identified photographs of his son taken at that time. Mr. Gooden had no knowledge of how or by whom his son was beaten that did not come from his son. C.J. Hallmark was an investigator with the Talladega Sheriff's Office in 1983 and was involved in the investigation of the Franklin murders. Hallmark never threatened or abused Gooden and no one in Hallmark's presence ever threatened or abused Gooden. Hallmark never told Gooden that they ought to take him out and shoot him. Hallmark did not threaten to take Gooden out and beat him. Contrary to Gooden's Rule 20 testimony, Hallmark was not present when a statement, Petitioner's Exhibit No. 2, was given by Gooden on July 11, 1983.

Hallmark was present on July 15, 1983 when Gooden gave a statement, Petitioner's Exhibit 4. Hallmark was also present when Gooden gave his July 21, 1983 statement, Petitioner's Exhibit 5. Neither Hallmark nor anyone in his presence threatened Gooden to make him give those statements. Hallmark was a deputy sheriff in 1978 and 1979. He did not beat Gooden then or on any other occasion.

Robert Rumsey is, and was in 1983, the District Attorney for Talladega County, Alabama. He prosecuted Peoples for the Franklin murders. As part of his involvement in that case, Rumsey interviewed Gooden. His purpose in interviewing Gooden was to check Peoples's version of the events of July 6, 1983 against Gooden's, in the hope of contradicting Peoples.

During the interview, Gooden volunteered that Peoples did not have a .22 rifle in his hand when he went in the Franklins' home. At that point, Rumsey knew that the Franklins' murder had involved a .22 rifle but no one outside the investigation could have known, except a person or persons who participated in the murder of the Franklins. Rumsey continued to question Gooden, who ultimately admitted his involvement, see Petitioner's Exhibit 4, and took Rumsey, Studdard, and others to the scene where the Franklins' bodies had been found.

Rumsey was present and participated in obtaining Gooden's July 15, 1983 statement. Neither Rumsey nor anyone in his presence threatened Gooden. Gooden later told Rumsey that he had not learned the location where the Franklins' bodies had been found from the news and that no one had told him where the bodies had been found before he took Rumsey there. Rumsey did not dictate Gooden's July 21, 1983 statement, Petitioner's Exhibit 5, or any other statement. He has never threatened Gooden and no one in his presence has ever threatened Gooden.

Rumsey entered into a plea agreement with Gooden after negotiations with Gooden's lawyer, George Sims. The agreement was reached the night before Gooden testified and was conditioned on Gooden testifying truthfully.

The agreement also included a requirement that Gooden continue to testify truthfully in the future, if necessary, and provided that if Gooden did not testify truthfully then he would be prosecuted for capital murder. See, Petitioner's Exhibit 1. Rumsey did not tell Gooden what to testify to beyond requiring him to tell the truth. After Peoples's Rule 20 petition was filed, Rumsey met with Gooden in the presence of George Sims. At that time Gooden reaffirmed the truth of his trial testimony.

Jerry Studdard is, and was in 1983, the Sheriff of Talladega County, Alabama. He was involved in the investigation of the *1185 Franklin murders. Studdard was present when Gooden was interviewed on July 14, 1983 in the district attorney's office. He was present when Gooden gave his statement, Petitioner's Exhibit 4, early in the morning on July 15, 1983. Neither he nor anyone in his presence threatened or abused Gooden. Studdard was also present when Gooden took Rumsey to the scene where the Franklins' bodies were found. Neither Studdard nor anyone in his presence told Gooden where the bodies had been found. Gooden told them where to go and when to stop.

Studdard was present when Gooden gave his July 21, 1983 statement, Petitioner's Exhibit 5. Studdard did not dictate this or any other statement. Studdard never threatened or abused Gooden. No one in his presence ever threatened or abused Gooden. Based on the testimony and exhibits introduced at the Rule 20 hearing, Peoples has failed to make out a claim of newly discovered evidence. Gooden's recantation of his trial testimony is not sufficient to warrant a new trial. Gooden's Rule 20 testimony is contradicted by credible testimony and is false. Recanting testimony is inherently unreliable and has been recognized as being untrustworthy. Wadsworth v. State, 507 So.2d 572, 575 (Ala.Cr.App.1987) , cert. denied, No. 85-1399 (Ala.1986); Peterson v. State, 426 So.2d 494, 497 (Ala.Cr.App.1982) , cert. denied, No. 82-361 (Ala.1983).

Gooden's explanation that he lied at trial because he was threatened was shown to be false. District Attorney Rumsey, Sheriff Studdard and Deputy Hallmark were all credible witnesses and each testified that neither they nor anyone in their presence threatened or abused Gooden. Gooden's claim that he had reason to fear abuse in 1983 because he was beaten in 1978 or 1979 was contradicted by Hallmark and by a hospital record in which he reported that he was assaulted in the county jail without mentioning that he was assaulted by the police, Petitioner's Exhibit 11.

Gooden's Rule 20 testimony was contradicted in additional ways. First, Gooden's denial of his July 15, 1983 and July 21, 1983 statements was shown to be false. Rumsey and Studdard were present when Gooden gave the July 15, 1983 statement and identified it as his statement. Hallmark was present when Gooden gave his July 21, 1983 statement and identified it as his statement.

Second, Gooden's testimony that he did not take the authorities to the murder scene was shown to be false. Rumsey and Studdard were taken to the scene by Gooden and did not tell him beforehand where the bodies had been found. Third, Gooden's claim that Rumsey and Studdard dictated a statement for his signature was shown to be false. Rumsey and Studdard denied dictating any such statement. Their testimony is credible and Gooden's Rule 20 testimony is not. Fourth, Gooden's claim that he was coerced into pleading guilty and testifying was shown to be false. Rumsey and Sims testified that they negotiated a plea agreement predicated on Gooden's truthful testimony and that Gooden was not told what to say at trial. Further, as shown by Petitioner's Exhibit 1, Gooden voluntarily pleaded guilty. Fifth, after the Rule 20 petition was filed, Gooden reaffirmed the truth of his trial testimony to District Attorney Rumsey and George Sims.

Based on the above, it is clear that Gooden's Rule 20 testimony was false and his trial testimony was true. Because Gooden's recantation of his trial testimony is clearly false, Peoples has failed to prove the existence of newly discovered evidence and is not entitled to relief.

Peoples v. Campbell, 377 F.3d 1208 (11th Cir. 2004) (Habeas).

Background: After capital murder conviction and death sentence were affirmed on direct appeal, 510 So.2d 554 and 510 So.2d 574, and state postconviction relief was denied, 565 So.2d 1177, petitioner sought writ of habeas corpus in federal court. The United States District Court for the Northern District of Alabama, No. 94-02175-CV-B-E, Sharon Lovelace Blackburn, J., denied petition, and petitioner appealed. The United States Court of Appeals for the Eleventh Circuit, 227 F.3d 1342, ruled that the district court erred in issuing a certificate of probable cause (CPC) in lieu of a certificate of appealability (COA), and therefore vacated the CPC and remanded the case to the district court for the issuance of a COA indicating which specific issues satisfied the standard of a "substantial showing of the denial of a constitutional right" as required by Antiterrorism and Effective Death Penalty Act (AEDPA).

Holdings: Following issuance of a COA, the Court of Appeals, Tjoflat, Circuit Judge, held that:
(1) petitioner was not entitled to consideration of his Fourth Amendment claim;
(2) petitioner was not "in custody" while in police chief's office and, therefore not entitled to advice of his Miranda rights;
(3) even if petitioner's attorneys' performances were constitutionally deficient, petitioner suffered no prejudice. Affirmed.

  

John W. Peoples Jr.