Opinion
CR-18-0316
08-14-2020
John Michael Ward v. State of Alabama
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. Appeal from Baldwin Circuit Court
(CC-97-799.60) MINOR, Judge.
John Michael Ward, an inmate on death row, appeals the Baldwin Circuit Court's denial of his petition for postconviction relief under Rule 32, Ala. R. Crim. P. For the reasons below, we remand this case for the circuit court to make specific findings regarding allegations Ward raised in his petition.
Facts and Procedural History
A jury found Ward guilty in 1998 of capital murder for the 1997 killing of his four-month-old son, Nicholas Allen Ward. See § 13A-5-40(a)(15), Ala. Code 1975. The jury recommended, by a vote of 10-2, that Ward be sentenced to death. The trial court accepted that recommendation and sentenced Ward to death.
In Ward's direct appeal, this Court quoted the trial court's summary of the evidence in that court's order sentencing Ward to death:
"'On April 22, 1997, at 7:28 A.M. an operator at the Baldwin County 911 Center received a call from Michelle Milner Ward, who stated that her baby was not breathing. Ten minutes later paramedics arrived at the Wards['] residence, a 16' x 7' travel trailer. After receiving Nicholas Ward's body from John Michael Ward (hereinafter "Ward") the paramedics attempted resuscitation by intubation while en route to the South Baldwin Regional Medical Center. The emergency room attending physician, Dr. Robert Revel, examined the infant determining that he was not breathing, had no pulse, was cold to the touch and had rigor mortis. The doctor pronounced the child dead on arrival. In addition to the lack of vital signs, Dr. Revel observed abrasions on Nicholas's scalp, nose and mouth area, pus-like material in his eyes, blood in the ears, bruises on the neck and chest, stool in the diaper, a deformity
on his right arm, and crusty material in some nail beds.
"'After the examination, Dr. Revel interviewed both parents. The father stated that Nicholas had been struck on the head by a folding chair falling from a shelf and that the baby had had breathing problems later in the day. The mother had wanted to seek medical attention, but that the father did not think it necessary.
"'Dr. Harold Reed, a pediatrician, answered the code call in the emergency room. He testified that he also examined the body and found the internal body temperature was 88 degrees.
"'Because foul play was suspected, hospital personnel contacted the Baldwin County Sheriff's office. Officer John Stewart arrived first and was followed by Chief Investigator Huey Mack, Jr. Officer Mack also observed abrasions on Nicholas's forehead, nose and mouth, bruises on the chest and arm, and missing toenails. He notified the Baldwin County coroner and the Department of Forensic Science of the unnatural death. Mr. Mack testified that the mother appeared to be upset during the administration of the last rites, but Ward was emotionless.
"'Investigator Mack left the hospital and met Chuck Machette, a caseworker with the Baldwin County Department of Human Resources at the Ward residence. The crime scene was photographed and videotaped. Ward and his wife participated in the taping. Mack took into his possession a blood-stained pillow from the bed where the parents said Nicholas had been sleeping the night before. Subsequent DNA testing revealed the blood belonged to Nicholas.
"'Dr. James Downs, the state medical examiner, performed the autopsy on Nicholas. He photographed and videotaped the body during the course of the
autopsy. The pictures recorded the various injuries to the baby's body. From the autopsy procedure, Dr. Downs concluded that Nicholas had been an infant that failed to thrive. In addition, the child suffered multiple fractures to the arms and ribs and damage to the toenails and fingernails. He opined that Nicholas suffered a spiral fracture of the right arm the day before death. Dr. Downs determined the cause of death to be multiple blunt force injuries and suffocation.Ward v. State, 814 So. 2d 899, 904-05 (Ala. Crim. App. 2000) (quoting Trial C. 5-7) ("Ward I").
"'Michelle Milner Ward testified that early in her relationship with Ward he placed his hand over her mouth and threatened to suffocate her. Ward continued to physically abuse his wife throughout the marriage.
"'Nicholas was born in December 1996, as the second child of her marriage to Ward. In January 1997, Mrs. Ward fled to her mother's home in Mobile, taking Nicholas and his sister, April. After remaining there one month, Mrs. Ward and the children moved to Penelope House, a Mobile County Shelter for battered women. After one month there, the mother and children returned to Ward's trailer in Magnolia Springs. Ward inflicted numerous injuries on his four month old son and murdered him by suffocation in the early morning hour of April 22, 1997.'"
"Trial C." refers to the clerk's record in Ward's direct appeal; "Trial R." refers to the reporter's transcript in the direct appeal. See Rule 28(g), Ala. R. App. P. See also Hull v. State, 607 So. 2d 369, 371 n.1 (Ala. Crim. App. 1992) (this Court may take judicial notice of its own records).
In its order sentencing Ward to death, the trial court found that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. See § 13A-5-49(8), Ala. Code 1975. The trial court found no statutory mitigating circumstances to exist under § 13A-5-51, Ala. Code 1975. The trial court found one nonstatutory mitigating circumstance to exist: Ward had been abused as a child by his father. The court also noted that Ward had been diagnosed with Tourette's Syndrome. After weighing the aggravating circumstance and the mitigating circumstance, the trial court sentenced Ward to death.
On appeal, this Court affirmed Ward's conviction and death sentence. Ward I, 814 So. 2d 899, cert. denied, 814 So. 2d 925 (Ala. 2001), cert. denied, 535 U.S. 907 (2002). This Court issued a certificate of judgment, making Ward's conviction final, on September 7, 2001.
The procedural history of Ward's pursuit of postconviction relief is convoluted. Because his attorney disregarded Ward's instructions, Ward was unable to file a petition under Rule 32, Ala. R. Crim. P., until November 2005. The circuit court dismissed that petition as untimely filed, and this Court affirmed the judgment. Ward v. State (No. CR-05-0655), 988 So. 2d 1078 (Ala. Crim. App. 2006) (table) ("Ward II"). The Alabama Supreme Court reversed this Court's judgment, however, and held that the doctrine of equitable tolling may toll the limitations period under Rule 32.2(c), Ala. R. Crim. P., if the petitioner shows both "extraordinary circumstances that are beyond the petitioner's control and that are unavoidable even with the exercise of diligence." Ex parte Ward, 46 So. 3d 888, 897 (Ala. 2007) ("Ward III").
Rather than file a Rule 32 petition, Ward's attorney petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Alabama. (C. 724.) The Southern District stayed the proceedings on that petition in August 2005 so that Ward could pursue postconviction relief in state court. (C. 725.)
On remand from Ward III, this Court again affirmed the summary dismissal of Ward's petition. This Court held that, because he had not asked for it in his petition, Ward had no right to equitable tolling. Ward v. State (No. CR-05-0655), 14 So. 3d 196 (Ala. Crim. App. 2007) (table) ("Ward IV"). The Alabama Supreme Court reversed this Court's judgment, holding that, because Ward had not had the opportunity to ask for equitable tolling, he should be given a chance to do so. Ward v. State, 46 So. 3d 898 (Ala. 2010) ("Ward V").
On remand, the circuit court held an evidentiary hearing and found that Ward had no right to equitable tolling. This Court reversed the circuit court's judgment. Ward v. State, 228 So. 3d 490 (Ala. Crim. App. 2017) ("Ward VI"). This Court held that Ward had shown extraordinary circumstances because the attorney he had hired to file a Rule 32 petition had ignored Ward's instructions and had instead filed a habeas petition in federal court. 228 So. 3d at 501. Ward had also shown reasonable diligence in pursuing postconviction relief because he "repeatedly sought help in both state court and federal court." 228 So. 3d at 502-03.
On April 3, 2017, Ward filed an amended Rule 32 petition, his third such amendment. (C. 50.) In that petition, Ward alleged: (1) that newly discovered evidence showed that Nicholas died from pneumonia and thus that Ward is actually innocent; (2) that his trial counsel were ineffective in their investigation and preparation of his defense at the guilt phase, including a failure to hire certain experts such as a forensic pathologist, a pediatrician, and a mental-health expert; (3) that his trial counsel were ineffective for not challenging the sufficiency of the evidence corroborating the testimony of Michelle Milner Ward; (4) that his trial counsel were ineffective at the penalty phase; (5) that his appellate counsel was ineffective; and (6) that Alabama's death-penalty scheme is unconstitutional. The State answered the petition. (C. 542.)
That amended petition superseded the prior petitions. See, e.g., Smith v. State, 160 So. 3d 40, 48 (Ala. Crim. App. 2010).
The circuit court held an evidentiary hearing on September 26-27, 2017. Ward called the following witnesses: (1) Dr. Janice Ophoven, a forensic pathologist who opined that "Nicholas died of complications of pneumonia associated with failure to thrive, nutritional failure to thrive, associated with a history of aging chest fractures--rib fractures" (R. 42); (2) Robert Paul Cater, who served as Ward's trial counsel; (3) Spencer Davis, who also served as trial counsel; (4) Dr. Robert Shaffer, a psychologist; (5) Lisa Raley, a family friend; (6) Evelyn Breland, a former neighbor; and (7) Dr. Marti Loring, a social worker from Georgia. The State did not call any witnesses.
The circuit court held another hearing in November 2017 and at first instructed the parties to file proposed final orders in January 2018. Ward, however, asked for leave to file a fourth amended petition based on a December 7, 2007, memorandum prepared by Dr. Kenneth S. Snell, the then interim Chief State Medical Examiner at the Alabama Department of Forensic Sciences ("DFS"). In that memorandum ("the DFS Memorandum"), Dr. Snell stated that "four Senior State Medical Examiners[,] Dr. K. Kelly, S. Boudreau, A. Paredes, and K. Snell[,] reviewed the original case notes, histology slides, and photographs" from the autopsy report that Dr. James Downs had prepared on Nicholas. (C. 617.) Dr. Snell stated that all four pathologists agreed that Nicholas had "significant acute bronchopneumonia," but the pathologists had different opinions about the cause of Nicholas's death. Two pathologists thought, as Dr. Downs had testified at Ward's trial, that "the cause of death should remain as multiple blunt force injuries and suffocation." But, Dr. Snell wrote, "[t]wo of the pathologists are of the opinion that bronchopneumonia should be listed as the cause of death." (C. 617.) Dr. Snell stated that because there was no "majority opinion as to the cause of death, [Nicholas's] Autopsy Report [would] not be amended." (C. 617.)
Although Ward filed a request for all records from DFS in 2011 and a second such request in August 2017, he did not receive the DFS memorandum--or know of its existence--until September 22, 2017, just days before the hearing on his third amended Rule 32 petition. (C. 1399.)
The circuit court granted Ward's request for leave to amend, and, after receiving more time, Ward filed his fourth amended petition in March 2018. (C. 700.) In the fourth amended petition, Ward reiterated the claims raised in his third petition and added allegations based on the DFS memorandum. Ward argued that the DFS memorandum showed that Nicholas had pneumonia when he died and that two of the four DFS pathologists who reviewed the case thought pneumonia had caused Nicholas's death. He asserted that this directly contradicted testimony from Dr. Downs at Ward's trial that Nicholas must have been suffocated based on some physical signs that, Dr. Downs said, were consistent with death by suffocation and because he could discern no other cause of death. Ward characterized the claim as one based on newly discovered evidence under Ex parte Ward, 89 So. 3d 720 (Ala. 2011). (C. 731-45.) The State answered a month later. (C. 1346.) The State did not directly respond to Ward's new allegations based on the DFS memorandum.
In July 2018, the parties submitted a "joint stipulation of facts and evidence pertaining to ... Ward's fourth amended petition." (C. 1398.) In that filing, the parties stipulated that the DFS memorandum was authentic and that neither the State nor Ward had known about its existence until DFS provided the DFS memorandum to Ward on September 22, 2017. The parties also told the court that, because of their joint stipulation, there was no need to hold another evidentiary hearing to address the matters Ward raised in the fourth amended petition.
Both the State and Ward filed proposed final orders in September 2018. The circuit court, adopting the State's proposed order with minor changes, denied the petition in November 2018, and Ward appealed.
Although the circuit court's order denying Ward's petition is long and detailed, it does not address the allegations Ward raised in his fourth amended petition based on the DFS memorandum. Those allegations are material because, at a minimum, they show (1) that all four DFS pathologists who reviewed Dr. Downs's autopsy records of Nicholas concluded that Nicholas had pneumonia at the time of his death and (2) that two of the four pathologists thought that pneumonia should be listed as a cause of Nicholas's death. Although all four reviewing pathologists concluded that Nicholas had pneumonia, Dr. Downs--the only expert witness who testified at Ward's trial about the cause of Nicholas's death--said nothing in his report or in his trial testimony about whether Nicholas had pneumonia.
In Lewis v. State, [Ms. CR-14-1523, March 16, 2018] ___ So. 3d ___, ___ (Ala. Crim. App. 2018), this Court stated:
"Rule 32.9, Ala. R. Crim. P., provides that when an evidentiary hearing is held on a postconviction petition, the court 'shall make specific findings of fact relating to each material issue of fact presented.' (Emphasis added.) Rule 32.9(d), Ala. R. Crim. P. The Alabama Supreme Court has classified Rule 32.9(d), Ala. R. Crim. P., as a 'mandatory' provision of Rule 32. See Ex parte McCall, 30 So. 3d 400, 404 (Ala. 2008).
"This Court has consistently remanded cases when no findings of fact are made by the circuit court following an evidentiary hearing on a postconviction petition.
(Quoting Dedeaux v. State, 976 So. 2d 1045, 1049 (Ala. Crim. App. 2005), quoting in turn Anglin v. State, 719 So. 2d 855, 857 (Ala. Crim. App. 1996).)"'"Although we recognize that the trial courts of this state labor under a heavy caseload, and that requiring the trial court to prepare an order addressing each of the material allegations presented in the Rule 32 evidentiary hearing only adds to this already heavy burden, we must nonetheless remand this cause to the trial court, with instructions that it enter specific findings of fact 'relating to each material issue of fact presented.' Rule 32.9(d), Ala. R. Crim. P. (Emphasis added.) See also, Ex parte Walker, 652 So. 2d 198 (Ala. 1994); Smith v. State, 665 So. 2d 954 (Ala. Cr. App. 1994); Kolmetz v. State, 649 So.2d 1342 (Ala. Cr. App. 1994). As we have stated, '[a] statement of the basis of the trial court's decision is essential to afford the appellant due process.' Owens v. State, 666 So. 2d 31, 32 (Ala. Cr. App. 19 94)."'"
Ward's allegations based on the DFS memorandum present material issues of fact that the circuit court should evaluate in the first instance and for which it should enter written findings of fact. "It would be premature for this Court to review the issues without the circuit court's first making such findings of fact. See Ex parte Grau, 791 So. 2d 345 (Ala. 2000)." Lewis, ___ So. 3d at ___. Thus, we hereby remand this case to the Baldwin Circuit Court for that court to make findings of fact about the allegations based on the DFS memorandum. In making those findings, the circuit court should evaluate the allegations about the DFS memorandum as a standalone claim of newly discovered evidence under Rule 32.1(e), Ala. R. Crim. P., and Ex parte Ward, 89 So. 3d 720 (Ala. 2011), and grant or deny that claim. To the extent that those allegations affect any other claim raised in Ward's petition, the circuit court may amend its prior order denying relief and address those allegations as well. For example, Dr. Ophoven testified that "Nicholas died of complications of pneumonia associated with failure to thrive, nutritional failure to thrive, associated with a history of aging chest fractures--rib fractures." (R. 42.) Dr. Ophoven testified that "the pneumonia is what ended his life, but the malnutrition and the rib fractures that were clearly old, old, were the precipitating event." (R. 44.) Although the circuit court in its order denying relief addressed Dr. Ophoven's testimony in various ways, the court did not make any specific findings about Dr. Ophoven's opinion as to the cause of Nicholas's death; on remand, it should do so.
In her dissenting opinion, Judge Kellum cites Woodward v. State, 276 So. 3d 713, 758-61 (Ala. Crim. App. 2018), for the proposition that "an expert opinion sought after trial cannot form the basis of a claim of newly discovered material facts unless the facts or evidence underlying that expert opinion, not the opinion itself, meets the requirements in Rule 32.1(e)[, Ala. R. Crim. P.]" This Court's holding in Woodward was based on an understanding of "[t]he purpose of Rule 32.1(e) [as a mechanism] to provide relief from what may be an injustice based on facts or evidence that were unavailable at the time of trial, not to reward a petitioner for finding experts posttrial" (emphasis added). On the record before us, it is premature to conclude that Ward's newly discovered evidence claim based on an internal review conducted by the DFS years after Ward's trial and then not given to Ward for a decade is the same as a claim based on "an expert opinion sought after trial."
Due return should be filed in this Court within 90 days from the date of this opinion.
REMANDED WITH INSTRUCTIONS.
McCool and Cole, JJ., concur. Kellum, J., dissents, with opinion. Windom, P.J., recuses herself. KELLUM, Judge, dissenting.
In his third amended Rule 32, Ala. R. Crim. P., petition for postconviction relief, John Michael Ward alleged, among other things, that the opinion of Dr. Janice Ophoven, a forensic pediatric pathologist, that the cause of Nicholas Ward's death was pneumonia, not blunt-force injuries and suffocation as pathologist Dr. James Downs had testified at Ward's trial, constituted newly discovered material facts under Rule 32.1(e), Ala. R. Crim. P., entitling him to a new trial. In his fourth amended petition, Ward further alleged that a memorandum from the Alabama Department of Forensic Sciences ("DFS") indicating that four pathologists had reviewed Dr. Downs's work and had reached differing conclusions as to the cause of Nicholas's death, also constituted newly discovered material facts entitling him to a new trial.
The majority remands this cause for the circuit court to make specific findings of fact pursuant to Rule 32.9(d), Ala. R. Crim. P., regarding the newly-discovered-evidence claim based on the DFS memorandum, and it also encourages the circuit court to make further findings regarding Dr. Ophoven's opinion that the cause of Nicholas's death was pneumonia. However, I do not believe that a remand is necessary in this case because neither of Ward's claims of newly discovered material facts satisfy the requirements in Rule 32.1(e), which provides:
The majority does not indicate whether it believes additional findings regarding Dr. Ophoven's opinion are necessary with respect to Ward's claim that Dr. Ophoven's opinion constitutes newly discovered evidence or his claim that his trial counsel was ineffective for not retaining an expert pathologist, such as Dr. Ophoven, to testify at trial. Because the circuit court made extensive findings regarding Dr. Ophoven in addressing Ward's claim that his trial counsel was ineffective for not retaining an expert pathologist -- specifically finding that Dr. Ophoven's testimony at the evidentiary hearing was not credible -- and because the primary reason for the majority's remand is Ward's claim of newly discovered evidence based on the DFS memorandum, for purposes of this dissent I presume the majority wants additional findings regarding Dr. Ophoven's opinion as it relates to Ward's newly-discovered-evidence claim and not as it relates to his ineffective-assistance-of-counsel claim. --------
"Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
"....
"(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
"(1) The facts relied upon were not known by the petitioner or the petitioner's
counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
"(2) The facts are not merely cumulative to other facts that were known;
"(3) The facts do not merely amount to impeachment evidence;
"(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
"(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received."
First, the DFS memorandum is dated December 7, 2007, some nine years after Ward's trial, and Ward stated in his petition that the internal review of Dr. Downs's work that resulted in the DFS memorandum was undertaken by DFS at the same time as Dr. Ophoven was conducting her examination of the evidence in preparation for the Rule 32 proceedings. In explaining Rule 32.1(e), the Alabama Supreme Court in Ex parte Ward, 89 So. 3d 720, 725 (Ala. 2011), stated that "Rule 32.1(e)(1) requires that the facts relied upon not have been known by the petitioner or petitioner's counsel at the time of trial (though they must have been in existence at that time) or at the time of an earlier collateral proceeding, and that the facts could not have been discovered earlier through the exercise of reasonable diligence." (Emphasis added.) Because the DFS memorandum was not in existence at the time of Ward's trial, it cannot form the basis of a claim of newly discovered material facts under Rule 32.1(e).
Second, although couched in terms of newly discovered material facts, both of Ward's claims are actually claims of newly discovered expert opinion, i.e., the opinions of Dr. Ophoven and the pathologists from DFS who reviewed Dr. Downs's work. However, an expert opinion sought after trial cannot form the basis of a claim of newly discovered material facts unless the facts or evidence underlying that expert opinion, not the opinion itself, meets the requirements in Rule 32.1(e). See Woodward v. State, 276 So. 3d 713, 758-61 (Ala. Crim. App. 2018), and the cases cited therein. In this case, the DFS memorandum indicates that the four pathologists at DFS "reviewed the original case notes, histology slides, and photographs" (C. 617) to reach their respective conclusions, and Dr. Ophoven's written report, as well as her testimony at the evidentiary hearing, indicates that she reviewed the same evidence, as well as the testimony and evidence at Ward's trial and Nicholas's medical records, to reach her conclusion. Because the facts and evidence underlying the new expert opinions were either known to Ward or his counsel at the time of his trial or could have been ascertained through the exercise of reasonable diligence, the new expert opinions cannot form the basis of a claim of newly discovered material facts. "The purpose of Rule 32.1(e) is to provide relief from what may be an injustice based on facts or evidence that were unavailable at the time of trial, not to reward a petitioner for finding experts posttrial." Woodward, 276 So. 3d at 761.
Because the DFS memorandum was not in existence at the time of Ward's trial and because the facts and evidence underlying the new expert opinions were available to Ward at the time of his trial, his claims fail to satisfy Rule 32.1(e)(1) and, thus, present no material issue of fact or law necessitating further findings by the circuit court. See, e.g., McCartha v. State, 78 So. 3d 1014, 1017 (Ala. Crim. App. 2011) (noting that all five requirements in Rule 32.1(e) must be satisfied in order to constitute newly discovered material facts). Therefore, I respectfully dissent.