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Ex parte Gissendanner

Supreme Court of Alabama

January 4, 2019

Emanuel Aaron Gissendanner, Jr. In re: State of Alabama

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         Dale Circuit Court, CC-01-350.60; Court of Criminal Appeals, CR-09-0998


          Becca Wahlquist of Snell & Wilmer, L.L.P., Los Angeles, California, for petitioner.

          Steve Marshall , atty. gen., and Andrew Brasher , deputy atty. gen., and Lauren A. Simpson , asst. atty. gen., for respondent.

         BOLIN, Justice.[1]

         This Court granted certiorari in this case to review the Court of Criminal Appeals' opinion reversing in part the Dale Circuit Court's order granting Emanuel Aaron Gissendanner, Jr., a new trial based on ineffective assistance of counsel and a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

         I. Facts and Procedural History

         A. Trial

         In 2001, Gissendanner was charged with three counts of capital murder in the death of Margaret Snellgrove: murder during a kidnapping in the first degree, § 13A-5-40(a)(1), Ala. Code 1975; murder during a robbery in the first degree, § 13A-5-40(a)(2), Ala. Code 1975; and murder during a rape, § 13A-5-40(a)(3), Ala. Code 1975. A separate indictment charged Gissendanner with possessing or uttering a forged check drawn on Snellgrove's bank account, in violation of § 13A-9-6, Ala. Code 1975. He was convicted of two counts of capital murder — murder during the course of a robbery and murder during the course of a kidnapping — and of possession of a forged instrument. The jury recommended by a vote of 10-2 that he be sentenced to death on the capital-murder convictions. The circuit court then sentenced Gissendanner to death on the capital-murder convictions. He was sentenced, as a habitual offender, to life imprisonment on the forgery conviction. His convictions and sentences were affirmed on direct appeal. Gissendanner v. State, 949 So.2d 956 (Ala.Crim.App. 2006).

         Judge Kenneth Quattlebaum was the trial judge. His sentencing order contained a summary of the findings related to Gissendanner's participation in the crimes; it provided, in part, as follows:

"On Friday, June 22, 2001, [Gissendanner] intentionally caused the death of Margaret Snellgrove by inflicting severe head and neck injuries to her. The assault occurred at the victim's home. On Saturday, June 23, 200[1], neighbors and relatives became concerned about the victim, as she could not be located. She had missed several appointments on June 22nd and on June 23rd. She was last seen June 21, 2001. The police were contacted and examination of the victim's home revealed that she had been assaulted in her carport. Hair and blood, as well as the victim's broken glasses and an earring were discovered in the carport. The victim's car, a 1998 Oldsmobile

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Ninety-Eight, was missing. No one witnessed the assault, and there is no evidence of an accomplice in the case. [Gissendanner] had been to the victim's residence previously. He helped witness Reverend David Brown with yard work at her house for about three hours in March or April 2001.

"A witness testified that she saw a black guy driving an automobile matching the description of the victim's car at approximately 6:30 a.m. on the morning of June 22nd.2 The location where the witness saw the automobile was in close proximity to the victim's home. The witness could not identify the driver as [Gissendanner], but her attention was drawn to the vehicle because her sister-in-law had an automobile that looked the same.
"On the morning of June 22nd, [Gissendanner], driving the victim's vehicle, picked up his best friend, Bernard Campbell, nicknamed `Nobbie,' and they went to Clio. [Gissendanner] told Nobbie that the car belonged to one of his girlfriends. In Clio [Gissendanner], driving the victim's automobile, picked up three females who knew both [Gissendanner] and Nobbie, and they rode around, drank beer, and smoked weed. [Gissendanner] was wearing a brown pair of Dickey [brand] pants, a red shirt and a white tee shirt. [Gissendanner] told the females that he had bought the car from an `old white woman.' They all noticed a Bible in the car.3
"Queen Esther Morris testified that she saw [Gissendanner] the morning of June 22nd in the victim's car. [Gissendanner] told Morris that he was going fishing.
"Around 1:00 a.m. the morning of June 23rd the victim's automobile was reported abandoned on property owned by Linda Russell. Upon checking the license plate it was confirmed to be the victim's missing automobile.4 [Gissendanner] testified that the automobile was rented to him by an individual named Buster he saw early Friday morning who was looking to buy some drugs. [Gissendanner] further testified that Buster gave him a check on the victim's account, asked him to cash it and said he would use the proceeds to buy drugs from [Gissendanner].
"Following the discovery of the victim's automobile, law enforcement began a search and investigation in the area for the victim's body. The car was examined and blood was discovered in the trunk of the car, on the underside of the trunk lid. The blood was later determined to be that of the victim.
"Investigators searched a nearby abandoned trailer in which [Gissendanner] sometimes stayed. In the trailer they found several items belonging to the victim including a cell phone, the victim's purse and some papers taken from the stolen vehicle. Investigators also found some of [Gissendanner's] clothing in the trailer which matched the description of the clothing [Gissendanner] was wearing on Friday morning during his trip to Clio. The victim's bloodstains were found on the clothing.
"On Saturday evening, June 23rd, [Gissendanner] paid his former wife $100.00 to drive him to Montgomery to visit his sister. She did so. [Gissendanner] was there in Montgomery when he was identified as a suspect, and he returned voluntarily to the Ozark Police Department, where he was questioned. He denied any involvement in the death of the victim, but admitted to driving her automobile and cashing the victim's check at the SouthTrust Bank in Ozark.
"The body of Margaret Snellgrove was found with the use of a cadaver dog on June 27, 2001, near the area where the automobile was found abandoned

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and near the trailer where [Gissendanner's] clothes and the victim's belongings were found. The body was found in a ditch covered with tree limbs.5 It appeared to have been there for several days and was badly decomposed. An autopsy determined that Margaret Snellgrove died of severe head and neck injuries. When the body was found she was in her panties with her shirt and brassiere pulled up under her arms. Her breasts were exposed.

"2 [Gissendanner] is a black male.
"3 The victim's niece testified that the victim often carried a Bible.
"4[Gissendanner] did not deny having and using the victim's automobile.
"5 A knife was found in the stolen vehicle. The knife appeared to be freshly used for cutting wood. The limbs covering the victim's body had been cut there in the immediate vicinity of the ditch where she was found."

Gissendanner, 949 So.2d at 959-60.

         The trial judge further found the existence of three aggravating circumstances under § 13A-5-49, Ala. Code 1975: (1) that the murder was committed during a kidnapping; (2) that the murder was committed during a robbery; and (3) that the murder was committed while Gissendanner was on probation for five felony convictions (possession of a controlled substance and four second-degree-forgery convictions). The trial judge found no mitigating circumstances as set out in § 13A-5-51, Ala. Code 1975, and that any evidence of additional mitigating circumstances pursuant to § 13A-5-52, Ala. Code 1975, was far outweighed by the aggravating circumstances.

         The trial judge concluded:

"The court finds that this conviction is based upon circumstantial evidence. The guilt of the defendant may be proved by circumstantial evidence. The test of the sufficiency of circumstantial evidence is whether the circumstances, as proved, produce a moral conviction, to the exclusion of all reasonable doubt, of the guilt of the accused. The court finds that the state has met the burden of this test in this case. The court recognizes that there should not be a conviction based upon circumstantial evidence unless it excludes every other reasonable hypothesis than that of the guilt of the defendant. The court concludes from the evidence that the circumstances in this case cannot be reconciled with the theory that someone other than [Gissendanner] may have done the act. [Gissendanner] has been proven guilty by that full measure of proof the law requires.
"The court has not considered any statement by the victim's family members concerning the family member's opinions or characterization of the victim or [Gissendanner] or of the crimes or the appropriate sentence.
"The court has considered all of the evidence in the case, and the court has weighed the aggravating circumstances against the mitigating circumstances. After giving full measure and weight to each of the aggravating and mitigating circumstances, and taking into account the recommendation of the jury contained in its advisory verdict, it is the judgment of the court that aggravating circumstances outweigh mitigating circumstances shown by the evidence in this case. The aggravating circumstances speak for themselves and carry great weight in the mind of any reasonable and rational person. It is clear that the murder, the kidnapping, and the robbery that were committed in this case were deliberately and intentionally planned and carried out. [Gissendanner] chose his innocent victim at random to provide him with a joy ride and some cash. After killing her and abusing her

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he disposed of her body in a manner not suitable for an animal and left it to deteriorate and decompose in the open. The evidence illustrates graphically the evil intent of [Gissendanner] and his total disregard for the value of human life."

         B. Rule 32 Proceedings

         In 2007, Gissendanner timely filed a Rule 32, Ala. R. Crim. P., petition attacking his capital-murder convictions and death sentences. Following an evidentiary hearing, Judge Quattlebaum, who had presided over Gissendanner's trial, issued an order, granting Gissendanner's petition for postconviction relief on the grounds of ineffective assistance of counsel and a violation of Brady v. Maryland and ordering a new trial. In his 70-page order, Judge Quattlebaum found that Gissendanner's defense counsel were deficient in both the guilt phase and the penalty phase of the trial. The judge found that defense counsel failed to investigate and to prepare for trial. The judge also found that the State had violated Brady v. Maryland in failing to disclose handwriting samples to the defense. The following are the findings of Judge Quattlebaum as reflected in his order.

         1. Ineffective Assistance of Counsel by Failure to Investigate at the Guilt Phase

         Judge Quattlebaum found that counsel Bill Kominos spent, at most, nine hours with Gissendanner in the more than two years between the time Gissendanner turned himself in and his trial. Counsel Joseph Gallo, who was primarily responsible for the penalty phase, spent 7.7 hours with Gissendanner in 4 meetings over the more than 2 years before trial. Defense counsel spent, at most, 3 hours interviewing potential witnesses for the defense, with no interviews taking place until more than 18 months after Gissendanner was arrested. Defense counsel spent no time interviewing the State's witnesses. Fifteen months after Gissendanner's arrest, defense counsel sought funds for an investigator; funds were granted for 30 hours of the investigator's time. The investigator eventually spoke with only 2 potential witnesses and used only 4.75 hours of the 30 hours. Outside a limited meeting with Gissendanner's father, defense counsel did not speak with any of the factual witnesses who later testified at the Rule 32 evidentiary hearing. Although defense counsel knew that the State would be providing expert testimony in the fields of fingerprinting, handwriting analysis, pathology, and DNA evidence, they did not confer with or retain any experts who could have helped prepare a defense to such testimony and who would have offered their own analysis as part of the defense's case in the guilt phase.[2]

         Judge Quattlebaum further found that defense counsel's deficient performance prejudiced Gissendanner's defense. In his order, he cited numerous examples of defense counsel's failure to investigate and call, at trial, alibi witnesses to cast doubt on the State's theory of the case. Judge Quattlebaum also found that, had defense counsel reviewed documents available to them and/or consulted with experts about those documents, they would have been able to cast further doubt on the State's theory by explaining to the jury that none of the considerable amount of physical evidence collected at the victim's house had been linked to Gissendanner by the State. Specifically, the judge explained the lack of investigation in the following areas:

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          a. Fingerprint Report

         Judge Quattlebaum noted that crime-scene-forensics expert Larry Stewart, head of the United States Secret Service Forensics Laboratory, testified at the Rule 32 hearing that an "inexplicably altered" fingerprint report presented at the original trial was very troubling, because such an unexplained alteration reflects a deviation from standard procedures. Moreover, there was no chain of custody for the item found in the car from which the fingerprint that was the subject of the altered report was lifted. The judge found that defense counsel could have used such testimony at Gissendanner's trial to exclude the "corrected" report. The judge found that, had defense counsel investigated the case through a review of documents and or the retention of a forensics expert, they could have educated the jury about the lack of any fingerprints from the crime scene tying Gissendanner to the victim. This would have cast doubt on the State's theory that Gissendanner was the one who took the victim's car from her carport.

         b. Victim's Car

         Judge Quattlebaum also noted that, under the State's theory of the case, the victim's body was placed inside the trunk of her car after she was killed. One of the most important pieces of the State's case was the testimony of Shirley Hyatt that, while she was on her way to garage sales on Friday morning, she had seen an unidentified black man, near the victim's house, driving a white Oldsmobile car with a dark top. This was the only evidence that put Gissendanner in the vicinity of the victim's house. Furthermore, it was the only evidence tending to show that the car was taken by a black man rather than a white man named Buster Carr ((1) witnesses at the Rule 32 hearing who were not interviewed by defense counsel for trial had seen Carr driving the victim's car on Friday, June 22, 2001; (2) Carr had trimmed trees for the victim; (3) Carr had purchased drugs from Gissendanner in the past; and (4) Gissendanner had accepted items in exchange for drugs in the past). Gissendanner admitted driving the victim's car in another part of town after Buster Carr had given it to him in exchange for drugs. Other witnesses, who were not interviewed by defense counsel, saw Gissendanner at times on Friday morning that conflict with Hyatt's testimony that she saw a black man driving the victim's car near the victim's house. The judge also stated that had defense counsel reviewed Hyatt's June 28, 2001, interview with police, they would have discovered that Hyatt told police that she saw a black man driving a white and black car at 7:25 or 7:30 a.m. At trial, Hyatt said she saw the car at 6:30 or 6:45 a.m. and added that the black male had bushy hair (like Gissendanner). Had defense counsel reviewed this document, they could have cross-examined Hyatt on those discrepancies.

         Judge Quattlebaum also noted that defense counsel failed to review certain photographs in their possession. Photographs of the trunk of the victim's car showed no visible blood. The judge found that the photographs could contradict the State's theory that the victim was transported in the trunk of her car after suffering head and neck wounds. Had defense counsel used the photographs and consulted with a forensics expert as part of a basic investigation into the State's case, they could have discredited the State's contention that the victim's body had been placed inside the trunk of the car. Because the State had no other theory about how the victim's body was transported from her house to the pond where her body was found, this would have tended to create a reasonable doubt of Gissendanner's guilt.

         c. Knife and Branch Cuttings

         Judge Quattlebaum stated that the State's theory of the case, on which Gissendanner

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was convicted, had him drive the victim to Gunter Pond, drag her body over a barbed wire fence to a ravine near the pond, and then cover her body with branches he cut with a knife he left in the victim's car. The State offered testimony from a policeman that the knife in question had sap on it and "fresh cuts" on the blade that were made when Gissendanner "hacked" the tree branches to cover the body. The judge found that had defense counsel reviewed the documents and physical evidence, consulted with a forensics expert, or reviewed the testimony from the preliminary hearing, they would have discovered substantial evidence to discredit the State's theory that Gissendanner had driven the victim's body to Gunter Pond and covered her body with tree branches, including that no trace evidence collected from the pond area was connected to Gissendanner (hair, soil samples, footprints, fingerprints, tire tracks).

         Judge Quattlebaum stated that, at the original trial, the State alleged that Gissendanner had used the knife found in the car to cut all the branches found covering the victim's body at the pond. The police officer (who was not an expert in forensics) testified at trial that he could identify "fresh scrapes" and sap on the blade of the knife that would have come from cutting the branches. The State then offered into evidence one small branch that had originated from a tree at the ravine, and the police officer told the jury that it was apparent where the knife had hacked the branch before the branch was broken into two pieces. The judge found that, had defense counsel consulted with a forensics expert, they could have discredited this evidence concerning the knife being the instrument that had been used to cut the branches. No lab testing was done to show whether there was any sap on the knife or, if there was, to show that the sap was not consistent with the branch admitted into evidence at trial.

         Judge Quattlebaum found that, had defense counsel conferred with anyone or reviewed the physical evidence the State planned to use at trial, they could have been prepared to show the jury that no credible evidence connected the knife Gissendanner admitted to possessing to the scene where the victim's body was found. Moreover, the police officer who testified that the knife had been used to hack the branches covering the victim's body had previously testified at the preliminary hearing in July 2001 that several trees had actually been "sawed" in half to cover the body. As a result of defense counsel's failure to investigate and to prepare, they failed to recognize the obvious importance of introducing several photographs of the many large branches and trees that covered the victim's body, and the photographs were not introduced into evidence. In fact, several large sections of trees were found on top of the victim's body. This evidence was made especially important because of defense counsel's defense that Buster Carr, a professional tree trimmer, was a suspect.

         d. Forgery

         Judge Quattlebaum noted that Gissendanner was also charged with felony forgery (for which he received a sentence of life imprisonment) and that the State alleged that Gissendanner had written one of the victim's checks to himself and that he then cashed the check on Saturday morning, June 23, 2001. The State retained a handwriting expert who issued a report and appeared at trial. Although defense counsel knew that the State would be putting a handwriting expert on the stand, they did nothing to investigate the forgery allegations. The judge found that, had they investigated the facts and consulted an expert, defense counsel could have presented evidence to discredit the State's expert, which could have created reasonable

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doubt. Knowing that the State would put on an expert to testify that Gissendanner forged the front entries on the check, in a case in which the sole evidence of the forgery count was the check itself, defense counsel nonetheless failed to consult with or retain anyone who could refute the expert's report.

         At trial, the State's expert testified that it was 70-90% likely that Gissendanner had written parts of the front of the check in question. The State expert theorized that three different persons wrote on the front of the check. However, Gissendanner's expert at the Rule 32 hearing explained that the State's expert at the original trial could not conclusively make such findings based on the limited handwriting on the check. The Rule 32 handwriting expert opined that the handwriting on the front of the check was probably not Gissendanner's and that there simply was not enough evidence to make it likely that Gissendanner had forged the front of the check he had endorsed on the back and cashed. The expert at the Rule 32 hearing pointed out that Buster Carr's writing showed "similarities" with the handwriting on the forged check.

         e. Bank Teller

         Judge Quattlebaum stated that a bank teller testified at Gissendanner's trial that Gissendanner had been to the bank previously to cash checks written to him from the victim. The judge found following the Rule 32 hearing that, had defense counsel interviewed the bank teller and done a basic investigation of the victim's checking account, they would have found proof that, in fact, no other checks had ever been written to Gissendanner from the victim. The bank teller's testimony, which remained uncontradicted, was clearly erroneous and created a fictitious prior relationship between Gissendanner and the victim, which tended to erode reasonable doubt of Gissendanner's guilt. Defense counsel did not interview the bank teller or subpoena the bank records.

         f. Abandoned Trailer

         Judge Quattlebaum stated that, beginning with its opening statement, the State argued that Gissendanner lived in the abandoned trailer where some of the victim's possessions were later found. During the trial, the State's witnesses testified regarding the possessions belonging to the victim having been collected from the trailer along with clothes belonging to Gissendanner. The State noted that Gissendanner's clothes were found along with the victim's possessions in the abandoned trailer. The judge noted that defense counsel did not challenge and discredit this testimony, which served to connect Gissendanner and the victim. Those items found in the trailer — the victim's purse and its contents — likely had been with the victim at the time of her murder. The judge focused on defense counsel's failure to interview Gissendanner's family and neighbors, who would have been able to create a reasonable doubt in the jurors' minds regarding the State's theory that Gissendanner lived in the abandoned trailer.

         The judge also noted that defense counsel failed to review documents available to them that would have undermined the State's assertion that Gissendanner lived in the abandoned trailer. Photographs of the abandoned trailer and reports of the forensic testing on evidence collected from the trailer on two different dates cast doubt on the State's assertion. Clothing (a grey shirt and khaki pants) and a bedsheet were found in a white bucket in the trailer and were collected on Saturday, June 21, 2001. No witness or forensic evidence connected those clothes and the bedsheet to Gissendanner. Fingerprints were lifted from items in the white bucket, and none of the fingerprints matched Gissendanner's.

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          The judge stated that defense counsel did not investigate those facts, which they could have done with or without expert assistance, and that, thus, they were unprepared and unable to present testimony to rebut the ...

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