from Elmore Circuit Court (CC-08-476.60)
appellant, Calvin McMillan, an inmate on death row at Holman
Correctional Facility, appeals the circuit court's
summary dismissal of his Rule 32, Ala. R. Crim. P., petition
for postconviction relief attacking his capital-murder
conviction and sentence of death.
2009, McMillan was convicted of murdering James Bryan Martin
during the course of a robbery. The jury recommended, by a
vote of eight to four, that McMillan be sentenced to life
imprisonment without the possibility of parole. The circuit
court chose not to follow the jury's recommendation and
sentenced McMillan to death. This Court affirmed
McMillan's conviction and sentence of death on direct
appeal. See McMillan v. State, 139 So.3d 184
(Ala.Crim.App.2010). On August 23, 2013, this Court issued
its certificate of judgment.
August 2014, McMillan filed a timely petition for
postconviction relief attacking his capital-murder conviction
and death sentence. He filed an amended petition in December
2014 and an amendment to one claim in his petition in
February 2015. In March 2015, the circuit court issued a
72-page detailed order summarily dismissing all the claims in
McMillan's amended postconviction petition. This appeal
direct appeal, this Court set out the following facts
surrounding McMillan's conviction: 3245 "The
State's evidence tended to show
that on August 29, 2007, Calvin McMillan and Rondarrell
Williams drove to the Wal-Mart discount retail store in
Millbrook in a white Nissan Sentra automobile belonging to
Williams's girlfriend, in order for McMillan 'to get
him a ride' (R. 1046.) Williams testified that he knew
that McMillan had a gun. The men parked the vehicle by a
truck on the outskirts of the parking lot and Williams went
into the Wal-Mart store. He purchased some speakers and
returned to the vehicle, where McMillan, despite opening and
closing the vehicle's front passenger door several times,
had remained. After a few minutes, Williams again got out of
the vehicle and returned to the store.
"While Williams was in the store, McMillan got out of
the vehicle and began walking around the parking lot,
eventually standing by the entrance to the store. He
subsequently returned to the vehicle and sat in the front
passenger seat with the door open. He then got out of the
vehicle quickly, wearing a different shirt than he was
wearing when he and Williams had entered the parking lot, and
approached a man later identified as the victim.
"That same evening, the victim, James Bryan Martin, had
driven to the Wal-Mart store in Millbrook following a
Montgomery Biscuits minor-league baseball game. He had parked
his Ford F-100 pickup truck in the parking lot a few rows
from the vehicle driven by Williams and had entered the
store. Inside, he had purchased diapers, a Vault brand
beverage, and Reese's brand candy. After checking out, he
put his bags in his truck.
"The victim was then approached by a man later
identified as McMillan. Video surveillance of the parking lot
of the Wal-Mart store, which was admitted into evidence as a
DVD, shows that Martin walked several feet toward McMillan,
and then turned and walked back to his truck. The
surveillance video also shows that Martin got into his truck
and that a few seconds later the brake lights on the truck
came on. The video further shows that McMillan also walked
toward Martin's truck, hesitated when another vehicle
drove down the aisle, and then, when that vehicle passed,
McMillan went to the driver's side door of the truck. The
video demonstrates that McMillan appeared to shoot Martin and
then pull him out of his truck. Martin collapsed on the
concrete and McMillan shot him two more times. McMillan got
into the truck and started to drive away. He then placed the
truck into park, got out of the truck, and appears to have
shot Martin again. At that point, McMillan quickly got back
into the truck and sped out of the parking lot. Several
witnesses who were present in the parking lot or who were in
the entrance of the Wal-Mart store approached the victim and
called for help.
"Two disposable cameras were found in the truck. The
film from those cameras was subsequently developed[;] one of
the pictures was a photograph of McMillan pointing a pistol
resembling the murder weapon at the camera, a photograph of a
9mm High Point pistol positioned on a pile of money, another
photograph of the pistol placed on a pillow or bedding, and
two photographs of McMillan making hand gestures at the
camera. There was also a photograph of a closet containing a
striped shirt and a camouflage hat that matched the
description of the shirt and hat worn by the man who had shot
Martin. Among the clothing found in the truck was a black
shirt with a neon skull that resembled the shirt worn by the
man in Williams's girlfriend's vehicle the first time
he had gotten out of the vehicle. The officers also found a
pair of black Dickie brand shorts like those worn by the man
who shot Martin; in the pocket of those shorts was a 9mm
shell casing and a Reese's brand candy wrapper.
"McMillan gave a statement indicating that he had been
given a ride to Montgomery in the truck belonging to Martin
by a man named Melvin Ingram Browning and that Browning had
driven away with McMillan's possessions in the truck. The
State introduced evidence at trial indicating that McMillan
had a Social Security card for a Melvin Eugene Browning in
his wallet. (R. 1240.) Melvin Eugene Browning testified that
his wallet had been lost years before this incident and that
he was in the Lee County jail at the time of the offense. The
State presented evidence to substantiate Browning's
whereabouts at the time of the offense."
McMillan, 139 So.3d at 191-93 (footnotes omitted).
appeals the circuit court's ruling dismissing a Rule 32,
Ala. R. Crim. P., petition. "The petitioner shall have
the burden of pleading and proving by a preponderance of the
evidence the facts necessary to entitle the petitioner to
relief." Rule 32.3, Ala. R. Crim. P.
the circuit court is correct for any reason, even though it
may not be the stated reason, we will not reverse its denial
of the petition." Reed v. State, 748 So.2d 231,
233 (Ala.Crim.App.1999). The plain-error standard of review
does not apply when this Court evaluates the denial of a
collateral petition attacking a death sentence. See
Ex parte Dobyne, 805 So.2d 763 (Ala. 2001), and
Rule 45A, Ala. R. App. P. Moreover, the procedural bars in
Rule 32, Ala. R. Crim. P., apply to all cases, even those
involving the death penalty. Hooks v. State, 822
So.2d 476 (Ala.Crim.App.2000).
the circuit court summarily dismissed McMillan's petition
based on the pleadings. In discussing the pleading
requirements related to postconviction petitions, this Court
"Although postconviction proceedings are civil in
nature, they are governed by the Alabama Rules of Criminal
Procedure. See Rule 32.4, Ala. R. Crim. P. The
'notice pleading' requirements relative to civil
cases do not apply to Rule 32 proceedings. 'Unlike the
general requirements related to civil cases, the pleading
requirements for postconviction petitions are more
stringent....' Daniel v. State, 86 So.3d 405,
410-11 (Ala.Crim.App.2011). Rule 32.6(b), Ala. R. Crim. P.,
requires that full facts be pleaded in the petition if the
petition is to survive summary dismissal See Daniel,
supra. Thus, to satisfy the requirements for pleading as they
relate to postconviction petitions, Washington was required
to plead full facts to support each individual claim."
Washington v. State, 5 So.3d 26');">95 So.3d 26, 59
"The burden of pleading under Rule 32.3 and Rule 32.6(b)
is a heavy one. Conclusions unsupported by specific facts
will not satisfy the requirements of Rule 32.3 and Rule
32.6(b). The full factual basis for the claim must be
included in the petition itself. If, assuming every factual
allegation in a Rule 32 petition to be true, a court cannot
determine whether the petitioner is entitled to relief, the
petitioner has not satisfied the burden of pleading under
Rule 32.3 and Rule 32.6(b). See Bracknell v. State,
883 So.2d 724 (Ala.Crim.App.2003)."
Hyde v. State, 950 So.2d 344, 356
"An evidentiary hearing on a coram nobis petition [now
Rule 32 petition] is required only if the petition is
'meritorious on its face.' Ex parte
Boatwright, 471 So.2d 1257 (Ala. 1985). A petition is
'meritorious on its face' only if it contains a clear
and specific statement of the grounds upon which relief is
sought, including full disclosure of the facts relied upon
(as opposed to a general statement concerning the nature and
effect of those facts) sufficient to show that the petitioner
is entitled to relief if those facts are true. Ex parte
Boatwright, supra; Ex parte Clisby, 501 So.2d
483 (Ala. 1986)."
Moore v. State, 502 So.2d 819, 820 (Ala. 1986).
"[A] circuit court may, in some circumstances, summarily
dismiss a postconviction petition based on the merits of the
claims raised therein. Rule 32.7(d), Ala. R.Crim. P.,
"'If the court determines that the petition is not
sufficiently specific, or is precluded, or fails to state a
claim, or that no material issue of fact or law exists which
would entitle the petitioner to relief under this rule and
that no purpose would be served by any further proceedings,
the court may either dismiss the petition or grant leave to
file an amended petition. Leave to amend shall be freely
granted. Otherwise, the court shall direct that the
proceedings continue and set a date for hearing.'
"'"Where a simple reading of the petition for
post-conviction relief shows that, assuming every allegation
of the petition to be true, it is obviously without merit or
is precluded, the circuit court [may] summarily dismiss that
petition."' Bishop v. State, 608 So.2d 345,
347-48 (Ala. 1992) (emphasis added) (quoting Bishop v.
State, 592 So.2d 664, 667 (Ala.Crim.App.1991) (Bowen,
J., dissenting)). See also Hodges v. State, 147
So.3d 916, 946 (Ala.Crim.App.2007) (a postconviction claim is
'due to be summarily dismissed [when] it is meritless on
Bryant v. State, 181 So.3d 1087, 1102
(Ala.Crim.App.2011). "The sufficiency of pleadings in a
Rule 32 petition is a question of law. 'The standard of
review for pure questions of law in criminal cases is de
novo. Ex parte Key, 890 So.2d 1056, 1059 (Ala.
2003).'" Ex parte Beckworth, 190 So.3d 571');">190 So.3d 571,
573 (Ala. 2013).
these principles in mind, we review the claims raised by
McMillan in his brief to this Court.
first argues that the circuit court erred in summarily
dismissing his Brady v. Maryland, 373 U.S. 83
(1963), and Napue v. Illinois, 360 U.S. 264 (1959),
claims. Specifically, he argues that the State failed to
disclose that the inmate McMillan stabbed while McMillan was
incarcerated, Winston Lucas, Jr., had assaulted McMillan
before the stabbing. This error was compounded, he argues, by
the State knowingly presenting Lucas's allegedly false
pleaded the following in his amended postconviction petition:
"[Winston] Lucas and the other inmates attacked McMillan
at the direction of Elmore County jail officers. This was a
routine practice in 8-pod, the section of the jail in which
Lucas was housed. Officers arranged for Lucas and other
inmates to beat up certain inmates in exchange for items such
as food from McDonald's [fast-food restaurant] or
tobacco. This was why Lucas and other inmates attacked
"At the time of McMillan's judicial sentencing
proceeding, the State knew that Lucas and other inmates had
attacked and physically injured McMillan prior to the
incident on March 1, 2008. The State knew this information in
at least three independent ways. First, the incident occurred
at the Elmore County jail, a government agency operated by
government agents.... A jail record notes that McMillan, from
8-pod, received treatment for a headache and swollen right
eye on February 16, 2008; the nurse noted that it
'[a]ppears that someone hit him.' However, the jail
records which were produced to McMillan by the Elmore County
jail contain no incident report describing the attack on
Second, jail officers had directed Lucas and the others to
attack McMillan.... Third, prior to McMillan's judicial
sentencing proceeding, Lucas told prosecutor James Houts
during an interview at the Staton Correctional Facility that
he and other inmates had attacked McMillan prior to the
incident that occurred on March 1, 2008. Houts told Lucas
that he did not have to mention that in court. As stated
above, Lucas later testified that he and McMillan had never
been involved in a physical altercation before March 1,
State argued in its motion to dismiss the postconviction
petition that this claim was procedurally barred because it
could have been raised at trial or on direct appeal, but was
not. (C. 1064.) McMillan moved to amend this claim (C.
1243.), and the circuit court granted that motion. (C. 1248.)
However, McMillan failed to plead in his amendment to this
claim why the claim could not have been raised at trial or on
direct appeal. (C. 1249-53.)
record of McMillan's judicial sentencing hearing shows
that Lucas testified that he had been incarcerated with
McMillan at the Elmore County jail and that in March 2008,
McMillan attacked him with a "shank." On
cross-examination Lucas was questioned as to whether he and
other inmates had attacked McMillan before McMillan attacked
Lucas. The following occurred:
"[Defense counsel]: Okay. Back to this particular
incident. You're saying that [McMillan] just walked up
out of the blue and for absolutely no reason attacked you; is
that what you're saying?
"[Lucas]: We had a little argument.
"[Defense counsel]: You had a little argument before
"[Defense counsel]: Okay. That's in about December
of last year, is that when the argument was?
"[Lucas]: I guess, I don't know. I guess.
"[Defense counsel]: Okay. Shortly before this incident
occurred at the jail, correct?
"[Lucas]: Yes, sir.
"[Defense counsel]: All right. And in that little
argument isn't it true that you and about four other
inmates jumped on [McMillan] and attacked him?
"[Lucas]: No, sir.
"[Defense counsel]: Okay. There was some type of
physical altercation between you and [McMillan] and some
other folks before this alleged stabbing, correct.
"[Lucas]: No. It was just me and him talking. I
can't speak on behalf of others, you know what I'm
saying, because it was just me and him had a little argument
ourselves about respect.
"[Defense counsel]: Okay. About him not respecting you?
"[Lucas]: General respect to the cell.
"[Defense counsel]: To the cell. Okay. And that got a
little physical, correct?
"[Lucas]: No, we never did have any type of physical
contact at that time. It was just talk and it never escalated
to that point."
(Trial Record, R. 1957-58.)
circuit court made the following findings when dismissing
"This claim, however, could have been raised during
post-trial motions or on direct appeal. Accordingly, it is
procedurally barred. Ala. R. Crim. P., Rule 32.2(a)(3) and
"Alternatively, this claim is dismissed for failure to
allege a material issue of law or fact. The amended petition
claims that Winston Lucas, a witness for the State at the
judicial sentencing hearing, lied about having physically
assaulted McMillan in the months prior to McMillan stabbing
Lucas in the eye and hand while he was incarcerated and
awaiting trial. McMillan alleges that he was kicked and
punched by Winston Lucas, Herbert Buchanan, and two other
inmates many weeks prior to McMillan's attack on Lucas
with a deadly weapon. McMillan further alleges that Lucas was
the 'ringleader' of the attack and that it had been
arranged by jailers as part of a 'routine practice.'
McMillan alleges 'suppression' of the evidence
because the alleged assault against him (by Lucas) was done
at the behest of jailers and the sheriff and because Lucas
allegedly told a prosecutor of this fact during a pre-trial
"McMillan cannot establish 'suppression' of this
evidence as a matter of law. By his own admission, McMillan
would have been present at the time of the alleged assault by
Lucas, Buchannon and the other inmates. Also, McMillan's
amended petition further admits that there are no incident
reports describing such an attack on McMillan, so there is no
allegation that such documents were suppressed.
"As noted by the State in its motion to dismiss,
'suppression' is a necessary element of a
Brady claim. Because McMillan would have been
present at the scene he alleges in his amended petition, he
cannot prevail on this aspect of his claim.... Here, McMillan
was certainly aware of these alleged facts and could have
testified to these facts is he had so desired.
"The State is also correct that the facts McMillan
claims were suppressed are not material for purposes of
Brady [v. Maryland, 373 U.S. 83 (1963)]. That is,
there is no reasonable probability of a different result had
evidence that Lucas assaulted McMillan weeks or months prior
to McMillan's stabbing Lucas in the hand and eye been
presented to the Court. See Kyles v. Whitley, 514
U.S. 419 (1995).
"This claim would be dismissed due to a lack of
specificity. As McMillan's amended petition notes, Lucas
denied (under oath) having any physical altercation with
McMillan prior to McMillan's stabbing Lucas with a shank.
The amended petition further admits that there is no incident
report describing an attack on McMillan by Lucas. The State,
represented by the attorney who is alleged to have had
knowledge of Lucas's false testimony, has filed an answer
denying this claim, with the ethical and professional
implications that go along with such an action. Yet, the
petition is silent as to any evidence that McMillan was
assaulted by Lucas prior to McMillan's shanking of Lucas.
McMillan could have offered testimony in support of such a
claim at the sentencing hearing, but did not do so. McMillan,
then, has failed to carry his burden of pleading facts (as
opposed to conclusory statements), which, if proven, would
establish he is entitled to relief in light of the record of
trial. Ala. R. Crim. P., Rule 32.3. See also Ala. R. Crim.
P., Rule 32.6(b)."
adequately plead a Brady claim in a postconviction
"[A] petition must allege facts that, if true, would
establish that the prosecution suppressed evidence that was
favorable to the defendant and material. Cf. Rule 32.6(b),
Ala. R. Crim. P.; Williams [v. State], 710 So.2d
 at 1296-97 [(Ala.Crim.App.1996)]. Additionally, 'a
Rule 32 petitioner has no burden to plead facts in his or her
petition negating the preclusions in Rules 32.2(a)(3) and
(a)(5) in order to sufficiently plead a [Brady v.
Maryland, 373 U.S. 83 (1963)] claim....'
Mashburn v. State, 148 So.3d 1094, 1119 n. 5
(Ala.Crim.App.2013) (citing Ex parte Beckworth, [Ms.
1091780, July 3, 2013] So. 3d, (Ala. 2013)). Rather, the
State has the burden to plead any ground of preclusion it
believes applies to bar review of a Brady claim.
Ex parte Beckworth, [190 So.3d 571');">190 So.3d 571, 574 (Ala.
2013)]. However, once the State has pleaded a ground of
preclusion, that ground is presumed to apply until the
petitioner meets his 'burden of disproving its existence
by a preponderance of the evidence.' Rule 32.3, Ala. R.
Reynolds v. State, [Ms. CR-13-1907, September 18,
2015] So.3d __, __ (Ala.Crim.App.2015).
McMillan failed to plead in the amendment to his petition why
this claim was not procedurally barred in this postconviction
proceeding. Indeed, Lucas's cross-examination reflects
that defense counsel questioned Lucas about whether he had
been attacked by McMillan before McMillan attacked him.
Accordingly, the circuit court correctly found that this
claim was barred pursuant to Rules Rule 32.2(a)(3) and (5),
Ala. R. Crim. P.
the circuit court found that this claim lacked merit.
"'There is no Brady [v. Maryland, 373 U.S.
83 (1963)] violation where the information in question could
have been obtained by the defense through its own
efforts.' Johnson [v. State], 612 So.2d 
at 1294 [ (Ala.Crim.App.1992) ]; see also Jackson v.
State, 674 So.2d 1318 (Ala. Cr. App. 1993), aff'd in
part and rev'd in part on other grounds, 674 So.2d 1365
(Ala. 1995). '"Evidence is not 'suppressed'
if the defendant either knew ... or should have known ... of
the essential facts permitting him to take advantage of any
exculpatory evidence." United States v. LeRoy,
687 F.2d 610, 618 (2d Cir. 1982)[, cert. denied, 459 U.S.
1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)].' Carr
v. State, 505 So.2d 1294, 1297 (Ala. Cr. App. 1987)
(noting, 'The statement the appellant contends was
suppressed in this case was his own, and no reason was set
forth to explain why he should not have been aware of
it.'). Where there is no suppression of evidence, there
is no Brady violation. Carr, 505 So.2d at
Freeman v. State, 722 So.2d 806, 810-11
"[t]o prove a Giglio v. United States, 405 U.S.
150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), violation [or a
Napue v. Illinois, 360 U.S. 264 (1959), violation],
the petitioner must show that: (1) the State used the
testimony; (2) the testimony was false; (3) the State knew
the testimony was false; and (4) the testimony was material
to the guilt or innocence of the accused. Williams v.
Griswald, 743 F.2d  at 1542 [(11th Cir. 1984)].
'[T]he defendant must show that the statement in question
was "indisputably false, " rather than merely
misleading.' Byrd v. Collins, 209 F.3d 486, 517
(6th Cir. 2000) (quoting United States v. Lochmondy,
890 F.2d 817, 823 (6th Cir. 1989)). 'The burden is on the
defendants to show that the testimony was actually perjured,
and mere inconsistencies in testimony by government witnesses
do not establish knowing use of false testimony.'
Lochmondy, 890 F.2d at 822. '[I]t is not enough
that the testimony is challenged by another witness or is
inconsistent with prior statements, and not every
contradiction in fact or argument is material.'
United States v. Payne, 940 F.2d 286, 291 (8th Cir.
1991) (citing United States v. Bigeleisen, 625 F.2d
203, 208 (8th Cir. 1980)). '[T]he fact that a witness
contradicts himself or herself or changes his or her story
does not establish perjury.' Malcum v. Burt, 276
F.Supp.2d 664, 684 (E.D. Mich. 2003) (citing Monroe v.
Smith, 197 F.Supp.2d 753, 762 (E.D. Mich. 2001))."
Perkins v. State, 144 So.3d 457, 469-70
agree with the circuit court that McMillan would have
personal knowledge of the information he alleges was
suppressed; therefore, there was no suppression of evidence.
See Freeman, supra. Also, McMillan candidly admits
that there was no incident report of the alleged attack.
McMillan failed to plead that the State suppressed any
evidence, much less material evidence, or that the State
knowingly used false testimony. Thus, this claim was
correctly summarily dismissed pursuant to Rule 32.7(d), Ala.
R. Crim. P., because no material issue of fact or law exists
that would entitle McMillan to relief.
next argues that the circuit court erred in summarily
dismissing his claim that his trial counsel was ineffective
for failing to present certain evidence in mitigation during
the penalty phase of his capital-murder trial.
prevail on a claim of ineffective assistance of counsel, the
petitioner must satisfy the two-pronged test articulated by
the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). The petitioner must
show: (1) that counsel's performance was deficient; and
(2) that the petitioner was prejudiced by the deficient
"To sufficiently plead an allegation of ineffective
assistance of counsel, a Rule 32 petitioner not only must
'identify the [specific] acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment, ' Strickland v.
Washington, 466 U.S. 668, 690, 104 S.Ct. 2052');">104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), but also must plead specific facts
indicating that he or she was prejudiced by the acts or
omissions, i.e., facts indicating 'that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.' 466 U.S. at 694, 104 S.Ct. 2052');">104 S.Ct. 2052, 80
L.Ed.2d 674. A bare allegation that prejudice occurred
without specific facts indicating how the petitioner was
prejudiced is not sufficient."
Hyde v. State, 950 So.2d 344, 356
"'A defendant who alleges a failure to investigate
on the part of his counsel must allege with specificity what
the investigation would have revealed and how it would have
altered the outcome of the trial.' Nelson v.
Hargett, 989 F.2d 847, 850 (5th Cir. 1993) (quoting
United States v. Green, 882 F.2d 999, 1003 (5th Cir.
1989)). '[C]laims of failure to investigate must show
with specificity what information would have been obtained
with investigation, and whether, assuming the evidence is
admissible, its admission would have produced a different
result.' Thomas v. State, 766 So.2d 860, 892
(Ala.Crim.App.1998) (citing Nelson, supra),
aff'd, 766 So.2d 975 (Ala. 2000), overruled on other
grounds by Ex parte Taylor, 10 So.3d 1075 (Ala.
Mashburn v. State, 148 So.3d 1094, 1133
"The inquiry of whether trial counsel failed to
investigate and present mitigating evidence turns upon
various factors, including the reasonableness of
counsel's investigation, the mitigation evidence that was
actually presented, and the mitigation evidence that could
have been presented."
Commonwealth v. Simpson, 620 Pa. 60, 100, 66 A.3d
253, 277 (2013).
trial counsel presented a plethora of evidence in mitigation.
In fact, the evidence convinced the jury, by a vote of 8 to
4, to recommend a sentence of life imprisonment without the
possibility of parole. "[T]he jury's recommendation
of life imprisonment without parole negates [the
appellant's] showing that he was prejudiced by
counsel's performance." Boyd v. State, 746
So.2d 364, 389 (Ala.Crim.App.1999).
was represented at trial by attorneys W. Kendrick James and
Bill W. Lewis. Counsel presented the following evidence in
mitigation at McMillan's sentencing
Torrence, McMillan's older sister, testified that their
father was a drug dealer and that their mother was a
prostitute. She said that while she was living in New York
her father was "locked up" in 1987, and her aunt,
Carol Weaver, came to New York and took her and her sibling
to live with her in Shorter, Alabama. Torrence said that,
when her mother eventually came to Alabama her mother was
pregnant with McMillan who was born in 1988. Torrence said
that, during her mother's pregnancy, she continued to use
drugs, she continued to smoke marijuana, she continued to
drink alcohol, and she continued to smoke cocaine. Torrence
said that McMillan was placed in foster care shortly after
his birth. In 1991, Torrence said, she and McMillan moved in
with their mother in Waugh, Alabama, and at that time their
mother's boyfriend, Willie Ford, was living with them.
Torrence said that Ford was a "street hustler" and
that Ford was violent and had a bad temper. They lived in a
trailer, she said, that had no electricity and no water, and
there was never any food. Ford frequently was abusive,
Torrence said, and had even pulled a gun on them. He
frequently beat their mother in front of them. Torrence said
that Ford's son sexually abused McMillan. She said that
she and her siblings often stayed with their mother in
shelters for battered women. When Torrence got to high
school, she said, she started talking to counselors, and the
Department of Human Resources ("DHR") got involved.
In 1998 Ford and her mother were arrested and charged with
child endangerment after Ford beat McMillan with a pool stick
and put McMillan in the hospital. McMillan, she said, was
placed in different foster-care homes after his mother was
arrested in 1998.
Weaver, McMillan's maternal aunt, testified that in 1987
she went to New York to pick up her sister's children and
bring them to live with her in Shorter, Alabama. She said
that sometime later that year when McMillan's mother,
Kimberly McMillan, came to Alabama Kimberly was pregnant with
McMillan. McMillan was placed in foster care not long after
his birth, Weaver said. At that time, she said, Kimberly was
living with Willie Ford, who was a drug dealer. Weaver
testified that in 1998 Kimberly and Ford were arrested, that
Kimberly was charged with child endangerment and that Ford
was charged with assaulting McMillan. Weaver said that in
1996, when McMillan was approximately 10 years old, she first
learned that McMillan had been molested. McMillan, Weaver
said, was aggressive and angry and she had to place him in
foster care because she could not handle his behavior.
Dick, director of the Alabama Family Resource Center in
Chilton County, testified that he was retained by defense
counsel to review all DHR records related to McMillan, that
he reviewed "a pile of them, " and that he spoke to
former social workers and a psychologist about McMillan. Dick
said that Ford had a history of violent behavior, that in
1995 there were allegations of child abuse, and that McMillan
and his siblings had been beaten with extension cords and
punched in their stomachs. During Dick's testimony
various DHR reports that detailed abuse and neglect by
McMillan's mother and her boyfriend were admitted into
evidence. DHR records, Dick said, showed that Kimberly
McMillan and her children were in protective shelters for 16
days in 1995 and 92 days in 1997. Dick read the following
from one report:
"When we arrived at the home both Kimberly and Willie
were there. One of the officers kept Willie Ford outside
while Kimberly showed us the trailer they lived in. It was
dark and Kimberly explained that they had blown a fuse last
night. They had electricity, but no water, no phone, and only
a small space heater to keep them warm. There was a stove
that didn't work and she explained that they cooked on a
small grill that was on the porch. The refrigerator was empty
and the only visible sign of food was a loaf of bread. There
was no kitchen sink and the only water is what they got from
the gas station. To take a bath, Kimberly explained that they
have to rent a hotel room. The room where Ella and her
brother sleep had a couple of old mattresses on the floor
with a sheet and a blanket thrown loosely over the
mattresses. There didn't appear to be clothes and other
necessities in the home. The officer took pictures of the
trailer. Mr. Ford had a rifle that was under the pool table.
"We were all in agreement that the children were being
neglected and both Kimberly McMillan and Willie Ford were
arrested. Mr. Ford was visibly irritated by the arrest. I
talked privately with Ms. McMillan and explained when she got
out of jail I would be glad to help her get shelter if she
was willing to get the help she needs for her drinking
problem. I talked with her about Willie's anger and the
danger this might put her in if she goes back to the trailer
after getting out of jail."
(Trial Record, p. 1597-98.) Dick further detailed the
numerous times the children were given emergency vouchers for
food while they were in foster care, that McMillan had had
five different social workers in a five- or seven-year
period, and that in that same period he had been placed in 25
or 26 different homes.
Stacy Cosby, the clinical director for SafetyNet Youth
Systems, testified that SafetyNet is a residential
psychiatric-treatment facility for individuals under the age
of 21 and that it recruits, trains, and licenses foster
homes. She said that McMillan was one of the children under
her care in 2001 when he was placed in a foster home. Cosby
testified concerning an incident that occurred in 2001 when
she was in the neighborhood and McMillan threatened her and
his foster mother and McMillan was arrested. Cosby further
testified that McMillan had been treated by Dr. Daniel Mejer
in 2001. Dr. Mejer felt strongly that McMillan needed
residential treatment and that if he did not get help he
would end up in prison. (R. 1660.) She detailed one foster
home in which McMillan had been placed where he had been
physically abused. (R. 1665.)
Tucker, McMillan's father, testified that he came into
contact with Kimberly McMillan in 1987 when he was driving a
tractor-trailer cross country and was in New York. He told
her that he was driving to Montgomery and she asked for a
ride to Montgomery. They got married and Kimberly had
McMillan soon after the marriage. He said that child support
had been taken out of his check and sent to mcMillan's
autn, with whom he lived for a while. Tucker said that DHR
never contacted him about McMillan and that he would have
taken McMillan into his home had he known what had been
happening to him.
Kimberly Ackerson, a forensic psychologist, testified that
she examined McMillan and spoke with several of his family
members and reviewed various records relating to McMillan. It
was her opinion that McMillan had a conduct disorder which,
she said, is an "onset psychiatric disorder and it's
manifested by behavioral problems." (R. 1701.) She also
testified that McMillan has an "oppositional defiance
disorder." (Trial Record, R. 1702.) Specifically, she
said, McMillan was defiant and resisted and rejected
authority. McMillan's counselor recommended that he get
residential treatment. She testified:
"One of the things that the records show is that
[McMillan] demonstrated academic problems early on. And over
the course of time he has been subjected to psychological
testing primarily looking at intellectual testing and
achievement testing. And one of the things that the
achievement testing has consistently shown is that [McMillan]
had functioned well below his same age peers in the areas of
reading, math, English.
"And so what you do have is you have a young man who in
my opinion has been affected by numerous factors starting
from when he was in utero. We have a mother that was using
drugs and alcohol. He is then born to a mother who cannot,
because of her own personal issues, provide the trust, the
relationship and the attachment that this child needs.
"The next step down we now have a child who is subjected
to abuse. And not just slapped around, he is having guns
pointed at him, he is being sodomized. He continues to learn
and understand that the world is a hostile negative place.
"What happens at this juncture when he's about six,
seven, eight years of age, especially after I believe when he
was sodomized, is he develops a way of coping with this
world. And his way of coping with this world is to remain in
what is commonly referred to as a fight or flight response.
In other words, he is prepared to either fight or flight from
the situation. He doesn't know how else to react. He
hasn't been given the tools, he hasn't been given the
environment to learn how to react in a normal environment.
"So this coping mechanism, which is an adaptive coping
mechanism for him in the home, is obviously a maladaptive
coping mechanism for him within the foster home and within
the different facilities that he goes to. So it is not
surprising to me that a young individual who already has a
learning problem, so he has difficulty learning as it is,
what he has learned is a very maladaptive way of coping, is
put -- simply put into a residential or is put into a foster
home and is expected to behave. That really was not an
appropriate or fair expectation of this young man. And, in my
opinion, given that he was tossed to all of these different
homes, a couple of facilities here and there, what happened
was there was a failure to really look and see what was
driving these behaviors. Why was he continuing to act in such
a maladaptive way?
"And one of the reasons that I think he continued to act
in this manner is that he does have symptoms of posttraumatic
stress disorder. And one of the symptoms of posttraumatic
stress disorder in particular is hyperarousal and
hypervigilance. And that goes back to that fight or flight
response. He has to be hypervigilant, he has to be aroused,