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McMillan v. State

Alabama Court of Criminal Appeals

August 11, 2017

Calvin McMillan
State of Alabama

         Appeal from Elmore Circuit Court (CC-08-476.60)

          WELCH, Judge.

         The 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.

         In 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.

         In 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 followed.

          On 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).

         Standard of Review

         McMillan 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.

         "If 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).

         Here, the circuit court summarily dismissed McMillan's petition based on the pleadings. In discussing the pleading requirements related to postconviction petitions, this Court has stated:

"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 (Ala.Crim.App.2012).

"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 (Ala.Crim.App.2006).

"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., provides:
"'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 its face')."

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).

         With these principles in mind, we review the claims raised by McMillan in his brief to this Court.


         McMillan 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 testimony.

         McMillan 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 McMillan.
"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 McMillan.
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, 2008."

(C. 526-27.)

         The 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.)

         The 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 this, correct?
"[Lucas]: Yeah.
"[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.)

         The circuit court made the following findings when dismissing this claim:

"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 (5).
"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 interview.
"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)."

(C. 1497-1501.)

         To adequately plead a Brady claim in a postconviction petition

"[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 [1276] 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. Crim. P."

Reynolds v. State, [Ms. CR-13-1907, September 18, 2015] So.3d __, __ (Ala.Crim.App.2015).

         Here, 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.

         Alternatively, 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 [1288] 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 1297."

Freeman v. State, 722 So.2d 806, 810-11 (Ala.Crim.App.1998).

"[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 [1533] 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 (Ala.Crim.App.2012).

         We 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.


         McMillan 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.

         To 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 performance.

"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 (Ala.Crim.App.2006).

"'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. 2005)."

Mashburn v. State, 148 So.3d 1094, 1133 (Ala.Crim.App.2013).

"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).

         Here, 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).

         McMillan was represented at trial by attorneys W. Kendrick James and Bill W. Lewis. Counsel presented the following evidence in mitigation at McMillan's sentencing hearing:[1]

         Ella 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.

         Carol 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.

         Teal 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.

         Emma 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.)

         Eddie 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.

         Dr. 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, he ...

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