Boyd v. State

          Appeal from Lauderdale Circuit Court (CC-99-175.80)

          MINOR, JUDGE

         Nathan Lee Boyd was convicted of capital murder in 2000 for the 1999 killing of Joseph Danny Sledge during a first-degree robbery. See § 13A-5-40(a)(2), Ala. Code 1975. Boyd was sentenced to life imprisonment without the possibility of parole. Because Boyd was 17 years old when he killed Sledge, he was granted a resentencing proceeding pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016). At the conclusion of that proceeding, the circuit court again sentenced Boyd to life imprisonment without the possibility of parole. Boyd appeals. We affirm.

         Facts and Procedural History

         In this Court's unpublished memorandum affirming Boyd's original conviction and sentence on February 22, 2002, this Court provided the following factual background of Boyd's crime:^[1]

"On the morning of March 12, 1999, Bonnie Clemmons, an employee of The Galley, a restaurant in Florence, Alabama, found the owner-operator, Joseph Danny Sledge, dead in a pool of blood. He had been stabbed 23 times and, ultimately, the knife blade had broken off in his spine.

         "Testimony revealed that Boyd had worked for Sledge during the summer of 1998. On March 11, 1999, Boyd and his brother went to The Galley and ordered food. There was some discussion as to the fact that they had brought in beverages, which was against The Galley's policy, and Boyd and his brother took their food 'to go,' and left.

"On Friday, March 12, 1999, Donna Hawk, another employee of The Galley, took her niece to work with her. Sledge bought $20.50 worth of rolled pennies from Hawk's niece. Hawk wrote her name, address, and telephone number on the penny rolls. Sledge placed the penny rolls in a bucket under the register.

         "Later that same evening, Boyd and his brother came back to the restaurant and ordered a glass of water. Boyd argued with a waitress about the price of water and left. The waitress left the restaurant around 8:00 p.m. This was the last time Sledge was seen alive.

"At around 9:10 p.m., Gary Bowlin was driving past The Galley and noticed a small red pick-up truck exiting the parking lot. The truck nearly collided with Bowlin, and, as Bowlin took measures to avoid hitting the truck, he saw the face of the passenger in the front seat and noticed that the passenger was taking off his shirt. At trial, Bowlin identified Boyd as the passenger.

         "On Sunday, March 14, 1999, after receiving an anonymous tip, officers recovered a bank money bag, receipts, checks made out to The Galley, and a t-shirt floating in the water near Goose Shoals Bridge. On Monday, March 15, 1999, law enforcement received a phone call from Bowlin regarding the red pick-up truck that had nearly hit him when it was exiting the parking lot of The Galley. Also on that date, the Boyd brothers' parents went to the Sheriff's Department, concerned that their sons may have been involved in Sledge's murder. Officers, accompanied by the Boyds' parents, went to the Boyd brothers' apartment, and found a red pick-up truck parked behind the apartment. The officers went to the door, knocked, and obtained consent from Boyd's brother to search the apartment and the truck. In the apartment, officers found the rolled coins with Hawk's name, address, and telephone number written on them. One of the investigators called Hawk, and she explained how Sledge had purchased the pennies from her niece. Boyd and his brother were arrested. Boyd had cuts and abrasions on his left hand.

"In custody at the Sheriff's Department, Boyd waived his Miranda [v. Arizona, 384 U.S. 436 (1966), ] rights and agreed to make a statement. In his tape-recorded statement, Boyd implicated his brother. Boyd was then transported to the detention center, but, as he arrived, he expressed a desire to 'tell the truth.' (R. 681.) The officers escorted Boyd back to the Sheriff's Department. Boyd then gave a second tape-recorded statement. In his second statement, Boyd admitted that both he and his brother had participated in the murder and robbery of Sledge.

         "DNA evidence from Boyd's t-shirt and his brother's shoe identically matched a blood sample from the victim. DNA evidence also revealed that the Boyd brothers' DNA was present in blood samples taken from a tan cap found at the scene of the crime. One of Boyd's acquaintances testified that Boyd had previously expressed a desire to rob and kill Sledge. Boyd impeached the witness by eliciting testimony that the acquaintance engaged in recreational drug use and that the acquaintance had given two inconsistent statements regarding Boyd's desire to kill someone.

"Boyd testified in his own defense. He testified that he and his brother went to The Galley on March 11, 1999, because they 'planned on robbing it' (R. 920), but did not follow through with the robbery plans and left. He testified that, after a day of drinking, smoking marijuana, and planning, he and his brother returned to The Galley on March 12, 1999. Boyd ordered a glass of water, and the two left. Boyd and his brother drove around that night until they saw the waitress leave.

         "Boyd testified that he hid beside a door and rushed in when he heard Sledge unlock it. Sledge 'took off backwards towards the kitchen area,' but Boyd grabbed and held Sledge while the brother came through the door. (R. 931.) The brother hit Sledge in the face and 'more or less put him on the ground.' (R. 931.) Boyd picked up Sledge by the back of his pants and carried him to the kitchen. Boyd held a B.B. gun, which resembled a pistol, on Sledge while Eric tied him up with a fan cord. Boyd testified that he and his brother became distracted by headlights in the window, and Sledge somehow managed to free his hands and grabbed a knife. Boyd testified that Sledge 'c[ame] up at [him] with the knife.' (R. 932). Boyd tried to get the knife away from Sledge while the brother kicked Sledge back down onto the floor. The brother took a knife from the counter and stabbed Sledge several times. Sledge continued to kick, and the brother then stabbed him in the legs and in the stomach. Boyd could not wrestle the knife from Sledge's hand, 'until he died.' (R. 933.) Boyd testified that

"'[a]t one point in time he -- he just got strong -- I don't know -- I guess it was just a ... burst of adrenaline and [Sledge] pushed ... me and I fell back. It had kinda got a little slippery from all the blood, and when [Sledge] came over on top of me and the knife was on my chest, and about that time I heard a loud pop. And he just relaxed and went limp. And when that happened, I just stood up and threw him off of me.'

"(R. 933-34.) Boyd testified that his brother then picked up a money bag, the bucket of change under the cash register, and Sledge's wallet, and the two left."

         On October 6, 2000, a jury found Boyd guilty of capital murder under § 13A-5-40(a)(2), Ala. Code 1975.^[2] At the conclusion of the penalty phase, the jury unanimously recommended that Boyd be sentenced to life imprisonment without the possibility of parole. The circuit court followed that recommendation.^[3]

         This Court, as noted, affirmed Boyd's conviction and sentence. Boyd, 854 So.2d 1215 (Ala.Crim.App.2002) (table). The Alabama Supreme Court denied Boyd's petition for certiorari on September 13, 2002. Ex parte Boyd (No. 1011331), 876 So.2d 519 (Ala. 2002) (table).

         Boyd obtained the current resentencing proceeding through a petition he filed under Rule 32, Ala. R. Crim. P., in 2013. In that petition, his second Rule 32 petition, Boyd sought relief under Miller v. Alabama, 567 U.S. 460 (2012), in which the United States Supreme Court held that the Eighth Amendment to the United States Constitution forbids a mandatory sentence of life imprisonment without the possibility of parole for juvenile offenders. The circuit court granted Boyd's petition on January 6, 2014. This Court, however, reversed the circuit court's judgment based on this Court's holding in Williams v. State, 183 So.3d 198 (Ala.Crim.App.2014), that Miller did not apply retroactively. See State v. Boyd, 183 So.3d 236 (Ala.Crim.App.2014). Once the matter was remanded to the circuit court, that court granted Boyd's request to stay the petition while the Supreme Court of the United States considered the petition then pending in Montgomery v. Louisiana, 135 S.Ct. 1456 (2015). After the decision in Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016), in which the United States Supreme Court held that its decision in Miller applied retroactively, the circuit court again granted Boyd's petition for resentencing pursuant to Miller.

         Over the next couple years, Boyd filed several motions for expenses for investigation and for expert assistance, as well as motions related to discovery matters. The circuit court appears to have granted most of Boyd's motions. Before the resentencing hearing that was scheduled for September 6, 2018, Boyd and the State filed extensive briefs regarding their respective positions. At that hearing on September 6-7, 2018, both the State and Boyd presented testimony from several witnesses. The State offered 37 exhibits into evidence, and Boyd offered 27 exhibits into evidence.^[4]

         The circuit court, in a detailed order dated September 26, 2018, resentenced Boyd to life imprisonment without the possibility of parole.^[5] (C. 326.) Boyd filed a timely notice of appeal.

         I.

         Boyd first argues that the decision to sentence a juvenile offender to life imprisonment without the possibility of parole should be made by a jury and not by the trial court. (Boyd's brief, p. 22.) Boyd acknowledges that this Court in Wilkerson v. State, [CR-17-0082, Nov. 16, 2018]___So. 3d___ (Ala.Crim.App.2018), cert. denied (No. 1180332, April 12, 2019), ___ So. 3d___ (Ala. 2019), cited with approval the holding of the Supreme Court of Michigan in People v. Skinner, 502 Mich. 89, 917 N.W.2d 292 (2018), that whether a juvenile convicted of capital murder should be sentenced to life imprisonment without the possibility of parole is not a factual finding that must be made by a jury. Rather, "whether a juvenile who has been convicted of capital murder should be sentenced to life imprisonment without the possibility of parole is ultimately a moral judgment, not a factual finding." Wilkerson, So.3d at (citing Skinner, 502 Mich. at 117 n.11, 917 N.W.2d at 305 n.11). Wilkerson quotes the following passage from Skinner, which was, in turn, quoting from the decision of the United States Court of Appeals for the Sixth Circuit in United States v. Gabrion, 719 F.3d 511, 532-33 (6th Cir. 2013):

"'"[T]erms [such as] consider, justify, [and] outweigh ... reflect a process of assigning weights to competing interests, and then determining, based upon some criterion, which of those interests predominates. The result is one of judgment, of shades of gray; like saying that Beethoven was a better composer than Brahms. Here, the judgment is moral--for the root of 'justify' is 'just.' ..." [United States v. Gabrion, 719 F.3d 511, 532-33 (6th Cir. 2013).] For the same reasons, a trial court's decision to impose life without parole after considering the mitigating and aggravating circumstances is not a factual finding, but a moral judgment.'"

Wilkerson, ___So. 3d at___ . Boyd directly questions this quoted passage from Wilkerson, stating: "[T]here is extreme danger in entrusting moral judgments of such immense gravity as one which might imprison a child for the entirety of her/his life in the hands of a single inherently flawed human being; judge or not." (Boyd's brief, pp. 25-26.) In support of this assertion, Boyd cites actions by former Governor George Wallace and former Chief Justice Roy Moore. (Boyd's brief, pp. 27-29.) Boyd also questions "how out of touch" Judge Raymond Kethledge, who authored the opinion in Gabrion, supra,

"would likely, himself, be with the average person living today in Boyd's community, where one seeking to discuss music in earnest would be much more likely to converse about whether Florida Georgia Line [a musical group] is really country music, whether Cardi B [a musical artist] only won album of the year because the rap albums released in 2018 were so weak, or how excited everyone is about the upcoming Tool [another musical group] record."

(Boyd's brief, p. 29.) Boyd concludes with an assertion that this

"Court should mandate, if the decision to sentence a juvenile offender to life without the possibility of parole is a moral judgment, that moral judgment cannot be accurately made by a single judge and must, instead, be made by a jury made up of community members from the victimized community."

(Boyd's brief, pp. 30-31.)

         Boyd did not make these arguments below. Thus, they are not properly before us. Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003). And even if these arguments were properly before us, they are policy-based arguments that should be directed to the legislature, not to this Court. See, e.g., Marsh v. Green, 782 So.2d 223, 231 (Ala. 2000) ("These concerns deal with the wisdom of legislative policy rather than constitutional issues. Matters of policy are for the Legislature and, whether wise or unwise, legislative policies are of no concern to the courts. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939). In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), cert. dismissed, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945), this Court held that a court cannot hold a statute invalid because of its view that 'there are elements therein which are violative of natural justice or in conflict with the court's notions of natural, social, or political rights of the citizen.' 246 Ala. at 9, 18 So.2d at 815.").

         Here, the legislature has decided this issue adversely to Boyd's position. Section 13A-5-43(e), Ala. Code 1975, provides:

"If the defendant is found guilty of a capital offense or offenses with which he or she is charged and the defendant establishes to the court by a preponderance of the evidence that he or she was under the age of 18 years at the time of the capital offense or offenses, the sentence shall be either life without the possibility of parole or, in the alternative, life, and the sentence shall be determined by the procedures set forth in the Alabama Rules of Criminal Procedure for judicially imposing sentences within the range set by statute without a jury, rather than as provided in Sections 13A-5-45 to 13A-5-53, inclusive. The judge shall consider all relevant mitigating circumstances.

         "If the defendant is sentenced to life on a capital offense, the defendant must serve a minimum of 30 years, day for day, prior to first consideration of parole."

         This subsection was added by Act No. 2016-360, Ala. Acts 2016. Section 3 of Act No. 2016-360 states:

"This act shall apply to any person under the age of 18 years at the time an offense was committed who was sentenced to life without the possibility of parole under Section 13A-5-2, 13A-5-39, 13A-5-43, or 13A-6-2, Code of Alabama 1975, whether the person is currently incarcerated or hereinafter convicted."

(Emphasis added.) Thus, the legislature has decided that whether to sentence a juvenile to life imprisonment without the possibility of parole is a decision to be made by a judge, not by a jury. Unless a constitutional or other legal problem exists with the legislature's decision, it is not this Court's job to second-guess that decision.^[6]

         Boyd is not entitled to relief on this issue.

         II.

         Boyd next challenges the circuit court's decision to resentence him to life imprisonment without the possibility of parole. (Boyd's brief, pp. 38-77.)

         In Wilkerson, supra, this Court stated:

"'Miller "mandates only that a sentencer follow a certain process--considering an offender's youth and attendant characteristics"--before "meting out" a sentence of life imprisonment without parole. Miller, 567 U.S. at 483, 132 S.Ct. at 2471. "[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Miller, 567 U.S. at 489, 132 S.Ct. at 2475.'

"... [T]he Alabama Supreme Court in Ex parte Henderson[, 144 So.3d 1262 (Ala. 2013), ] established the following factors courts must consider when deciding whether life in prison with the possibility of parole would be an appropriate sentence for a juvenile:

"'(1) the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth.'

"144 So.3d at 1284. See also Foye v. State, 153 So.3d 854, 864 (Ala.Crim.App.2013). It should be noted, however, that 'some of the factors may not apply to a particular juvenile's case and that some of the factors may overlap.' Ex parte Henderson, 144 So.3d at 1284."

Wilkerson, ___So. 3d at___.

         Here, the circuit court expressly considered and addressed all 14 factors from Ex parte Henderson in reaching its decision. (C. 326-40.) Boyd contends the circuit court "'cherry-picked' evidence presented during the hearing (which in some cases, is utilized in opposing ways to itself in the sentencing order) to support its sentencing decision while completely ignoring other equally credible evidence." (Boyd's brief, p. 38.) Boyd also argues that the circuit court "misapprehended the import of certain Henderson factors and their relation to the purpose of the hearing." (Boyd's brief, pp. 38-39.) Boyd specifically challenges the circuit court's consideration of 13 of the 14 Henderson factors and its conclusion as to each of those factors.^[7]

         In reviewing the circuit court's sentencing determination after a hearing conducted pursuant to Miller and Montgomery, this Court applies an abuse-of-discretion standard of review. Wilkerson, ___So. 3d at___("Because life imprisonment without the possibility of parole remains a sentencing option for juvenile offenders, even in light of the Supreme Court's decisions in Miller and Montgomery, the standard of review to be applied is an abuse-of-discretion standard."). Also, the circuit court's findings as to the evidence presented at the resentencing hearing, including its consideration and application of the Henderson factors, are presumed correct and are reviewed for an abuse of discretion. See, e.g., Smiley v. State, 52 So.3d 565, 568 (Ala. 2010) ("'"When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact."'" (quoting Ex parte R.E.C., 899 So.2d 272, 279 (Ala. 2004), quoting in turn Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala. Civ. App. 1985))).

         A.

         Boyd argues that "the trial court failed to appropriately consider, as a mitigating factor, Nathan Boyd's youth, immaturity, impetuosity, and clear inability to appreciate risks and consequences." (Boyd's brief, p. 39.) This argument is addressed to the first Henderson factor, i.e., "the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences." 144 So.3d at 1284.

         Boyd first attacks the circuit court's observation that Boyd committed the crime less than 4 months before he turned 18 and that Boyd's "expert, clinical psychologist Dr. Robert D. Shaffer, acknowledged that [Boyd] would have been no more mature in four months on his 18th birthday." (C. 327.) According to Boyd, "[c]hronological age is not to be analyzed to determine whether it might be a mitigating factor. It is a mitigating factor and must be weighed in favor of a parolable sentence." (Boyd's brief, p. 40.) The circuit court's statements as to "chronological age," however, do not indicate that the circuit court refused to consider Boyd's age as a mitigating factor. Rather, they are merely statements of fact based on the evidence presented. This was not an abuse of discretion.

         As for "immaturity, impetuosity, [and] failure to appreciate [the] risks and consequences associated with [Boyd's chronological age]," the circuit court stated:

"The Court considered testimony submitted on behalf of [Boyd] in support of his claim of immaturity, impetuosity, and failure to appreciate risks and consequences. The defense presented testimony from [Boyd's] juvenile probation officer John Winston. The court finds that [Boyd] received counseling from Mr. Winston with a progressive increase in sanctions for behavioral issues and criminal conduct. Dr. Shaffer testified that the progressive sanctions were appropriate. [Boyd] was placed in the HIT ('High Intensity Treatment') Boot Camp Program just after his 16th birthday by the juvenile court. A year later, [Boyd] served 30 to 45 days at Mount Meigs, Department of Youth Services. [Boyd's] juvenile court history indicates that he was very familiar with the risks and consequences of illegal behavior.

"[Boyd's] testimony at trial established that [Boyd] selected the time, place, and circumstances of how the crime would be committed. [Boyd] testified that he and his brother 'planned it out to the "T."' ... [Boyd] knew the victim. He had worked for him on two separate occasions. [Boyd] took steps to minimize the risks of being linked to the crime, wearing surgical gloves while committing the crime and disposed of evidence in two separate locations. ...

"The Court finds that the evidence indicates that the crime was not a spur of the moment, impetuous, immature behavior of a 17-year-old who failed to appreciate that substantial penal penalties result from criminal behavior."

(C. 327-28.)

         Boyd argues that the "plan" for the crime was "immature and ridiculous ... [and] stupid[]." (Boyd's brief, p. 41.) He cites testimony from Dr. Shaffer that Boyd was "in an arrested state of development" (R. 405) and evidence indicating that Boyd did not do well in school and that he had low-to-average scores on standardized tests. Boyd's arguments in this regard, however, do not demonstrate that the circuit court abused its discretion. Rather, Boyd's arguments indicate that he thinks the circuit court should have weighed the evidence ...