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CASE NO. 1141359
IN THE SUPEME COURT OF ALABAMA
CRIMINAL APPEAL NUMBER CR-13-0899 TALLADEGA COUNTY CIRCUIT COURT
CC-1988-211.60
WILLIAM ERNEST KUENZEL,
Petitioner-Appellant,
v.
THE STATE OF ALABAMA,
Respondents-Appellees.
APPELLANT’S PETITION FOR A
WRIT OF CERTIORARI
Lucas C. Montgomery
Montgomery Ponder LLC
2421 Second Avenue North
Unit One
Birmingham, AL 35203
Tel: (205) 419-7931
David A. Kochman
(pro hac vice)
Henry Schein, Inc.
135 Duryea Road
Melville, NY 11747
Tel: (631) 845-2954
G. Douglas Jones
Jones & Hawley, P.C.
2001 Park Place North,
Suite 830
Birmingham, AL 35203
Tel: (205) 490-2290
Jeffrey E. Glen
(pro hac vice)
Anderson Kill P.C.
1251 Avenue of the Americas
New York, NY 10020
Tel: (212) 278-1000
ORAL ARGUMENT REQUESTED
Counsel for Petitioner-
Appellant
William Ernest Kuenzel
Dated: November 9, 2015
E-Filed 11/09/2015 @ 09:31:34 PM Honorable Julia Jordan Weller Clerk Of The Court
i
TABLE OF CONTENTS
PAGE NO.
STATEMENT REGARDING ORAL ARGUMENT ......................... 1
STATEMENT OF THE CASE ..................................... 3
STATEMENT OF THE ISSUES ................................... 9
STATEMENT OF FACTS ....................................... 10
UNDERLYING FACTS OF THE CRIME ........................ 10
A. The Total Evidence Known Today Relevant to the
Crime ........................................... 10
B. Venn Changes His Story to Implicate Kuenzel ..... 16
C. April Harris’s Testimony and Ala. Code § 12-
21-222 .......................................... 17
D. Discovery of Additional New Evidence
Establishing Innocence .......................... 20
RELEVANT PROCEDURAL HISTORY .......................... 24
STATEMENT OF THE STANDARD OF REVIEW ...................... 29
SUMMARY OF THE ARGUMENT .................................. 30
ARGUMENT ................................................. 32
POINT I .................................................. 32
MERITORIOUS § 12-21-222 CLAIMS ARE JURISDICTIONAL IN
POST-CONVICTION CAPITAL CASES WHERE LACK OF
CORROBORATION IS PREVIOUSLY UNKNOWN DUE TO ILLEGAL
BEHAVIOR BY THE STATE .................................... 32
A. The Corroboration Rule Is A Material
Protection ...................................... 32
B. Weeks Should Be Overruled, or Qualified for
Post-Conviction Claims Arising From Brady
Violations ...................................... 33
1. Weeks is an Aberration ..........................................................34
ii
2. A Contextual Analysis Is Necessary To
Determine Whether a Claim Is
Jurisdictional ............................. 38
3. Illegality of the Conviction Identifies
Claims Raising Jurisdictional Defects ...... 39
C. This Case Illustrates Why Weeks Should Be
Reconsidered, and Possibly Overruled ............ 43
POINT II ................................................. 49
UNDER THE PRESENT CIRCUMSTANCES, KUENZEL’S CLAIMS ARE
ENTITLED TO THE BENEFIT OF EQUITABLE TOLLING ............. 49
CONCLUSION ............................................... 58
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Adkison v State,
548 So. 2d 606 (Ct. Cr. App. 1988) ..................... 34
Allen v. Siebert,
552 U.S. 3 (2007) ...................................... 50
Anderson v. State,
44 Ala. App. 388, 210 So. 2d 436 (Ct. Cr. App. 1968) ... 43
Banks v. State,
845 So. 2d 9 (Ct. Cr. App. 2002) ....................... 54
Barr v. State,
4 So. 3d 578 (Ct. Cr. App. 2008) ....................... 40
Bradley v. State,
925 So. 2d 232 (Ala. 2005) ............................. 37
Brecht v. Abrahamson,
507 U. S. 619 (1993) ................................... 41
Dowdell v. Alabama,
854 So. 2d 1195 (Ct. Cr. App. 2002) .................. 3, 4
Enfinger v. State,
2012 Ala. Crim. App. LEXIS 113 (Ct. Cr. App. Dec. 14,
2012) .................................................. 38
Ex parte Benefield,
932 So. 2d 92 (Ala. 2005) .............................. 36
Ex parte Boys & Girls Clubs of Southern Alabama, Inc.,
No. 1130051, 2014 WL 3012523 (Ala. July 3, 2014) ....... 50
Ex Parte Canal Ins. Co.,
534 So. 2d 582 (Ala. 1988) ............................. 50
Ex parte Duncan,
1984 Ala. LEXIS 5048 (Ala. 1984) ................... 49, 56
iv
Ex parte Hall,
843 So. 2d 746 (Ala. 2002) ............................. 35
Ex parte Johnson,
620 So. 2d. 665 (Ala. 2002) ............................ 34
Ex parte Kuenzel,
577 So. 2d 531 (Ala. 1991) .............................. 9
Ex parte Monk,
557 So. 2d 832 (Ala. 1989) ......................... 27, 46
Ex parte Parks,
923 So. 2d 330 (Ala. 2005) ............................. 35
Ex Parte Robey,
970 So. 2d 1069 (Ala. 2004) ............................ 36
Ex parte Ward,
46 So. 3d 888, 897 (Ala. 2007) ......................... 56
Ex parte Ward,
89 So. 3d 720, 728 (Ala. 2011) ..................... 49, 57
Ex parte Weeks,
591 So.2d 441 (Ala. 1991) .......................... passim
Gaston v. State,
2015 Ala. LEXIS 79 (Ala. June 12, 2015) ........ 33, 35, 46
Green v. State,
61 So. 3d 386 (Ct. Cr. App. 2010) ...................... 43
Heard v. State,
999 So. 2d 992 (Ala. 2007) ............................. 36
Horn v. State,
913 So. 2d 539 (Ct. Cr. App. 2004) ..................... 40
Hurth v. Mitchem,
400 F.3d 857 (11th Cir. 2005) .......................... 50
Jackson v. State,
98 So. 3d 35 (Ct. Cr. App. 2012) ....................... 43
v
Kuenzel v. State,
577 So. 2d 474, 493 (Ct. Crim. App. 1990) .......... passim
Kuenzel v. State,
CR-13-0899, 2015 Ala. Crim. App. LEXIS 56 (Ct. Cr.
App. July 10, 2015) ................................ passim
Kyles v. Whitley,
514 U.S. 419 (1995) .................................... 54
Marks v. State,
29 So. 2d. 166 (Ct. Cr. App. 2008) ............. 33, 34, 35
McClintock v. State,
773 So.2d 1057 (Ct. Crim. App. 2000) ............... 38, 39
McCullough v. State,
21 So. 3d 758, 761-64 (Ala. 2009) ...................... 30
McHarris v. State,
678 So. 2d 258 (Ct. Cr. App. 1995) ..................... 40
Miles v. State,
476 So. 2d 1228 (Ct. Cr. App. 1985) .................... 43
Neder v. U.S.,
527 U.S. 1 (1999) .................................. 36, 41
Pace v. DeGugliemo,
544 U.S. 408 (2005) .................................... 50
Reed v. State,
407 So. 2d 153 (Ct. Cr. App. 1980), rev’d on other
grounds, 407 So. 2d 162 (Ala. 1981) ................. 4, 53
Rose v. Clark,
478 U.S. 570 (1986) .................................... 41
Schlup v. Delo,
513 U.S. 298 (1995) .................................... 24
Siebert v. Allen,
455 F.3d 1269 (11th Cir. 2006) ......................... 50
Siebert v. Allen,
506 F.3d 1047 (11th Cir. 2007) ......................... 50
vi
Siebert v. Campbell,
334 F.3d 1018 (11th Cir. 2003) ......................... 50
Siebert v. State,
78 So. 2d 842 (Ct. Cr. App. 1999) ...................... 50
Williams v. State,
72 So. 3d 721, 722-24 (Ct. Cr. App. 2010) .......... 30, 44
STATUTES
Ala. Code § 6-5-440 ...................................... 50
Ala. Code § 12-21-222 ................................ passim
OTHER AUTHORITIES
Ala. Const., art. IV, § 150 ........................... 6, 30
Ala. R. App. P. 39 ............................. 1, 8, 27, 28
Ala. R. Crim. P. 32.1 ................................ passim
Ala. R. Crim. P. 32.2 ......................... 7, 23, 29, 47
1
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 34(a) of the Alabama Rules of
Appellate Procedure, William Ernest Kuenzel, through
counsel, respectfully requests oral argument. Kuenzel has
been incarcerated on death row at Holman Correctional
Facility since 1988. He is 53 years of age, has -- in his
words – ‘existed’ on death row for 27 years, and he always
has maintained his innocence. This Court represents his
final opportunity to secure relief from conviction. Bill
Kuenzel did not commit the crime for which he was
convicted.
In over 22 years of post-conviction proceedings, no
court has reviewed Kuenzel’s substantive constitutional
claims because of technicalities resulting in summary
dismissals predicated upon various procedural default
doctrines. He has collected evidence with no court
funding, no subpoena power, no hearings, and no substantive
process in any post-conviction court.
By this appeal, Kuenzel seeks only justice. Many, many
people believe that this case was decided in grave error,
and that a guilty man has enjoyed leniency and freedom
while an innocent man rots on death row facing the looming
2
specter of execution. The situation is untenable, and this
Court alone possesses the power to grant relief.
Given the circumstances, most especially what’s at
stake, but also the novel legal issues involved, it is
respectfully submitted that the Court’s consideration and
adjudication of this case would benefit from oral argument.
3
COMES NOW Petitioner-Appellant William Ernest Kuenzel,
who is currently on death row at Holman Correctional
Facility, and hereby petitions this Honorable Court,
pursuant to Rule 39 of the Alabama Rules of Appellate
Procedure, for a writ of certiorari arising out of the
criminal court of appeals’ opinion in Kuenzel v. State, CR-
13-0899, 2015 Ala. Crim. App. LEXIS 56 (July 10, 2015)
(“Opinion”), affirming the summary dismissal on procedural
grounds of Kuenzel’s Successive Rule 32 Petition, filed on
September 23, 2013 (“Petition”).1
STATEMENT OF THE CASE
28 years ago today, Linda Offord was murdered while she
worked the counter at a Sylacauga convenience store. She
was 39 years of age, and a mother of three children. Bill
Kuenzel had nothing to do with this crime; in fact, Kuenzel
wasn’t even at the store that night. But his innocence is
not the only basis upon which we ask this Court to grant
him relief. In addition, relief is needed to prevent a
1 The Opinion is annexed as Appendix B. On September 11,
2015, the Court of Appeals overruled Kuenzel’s request for
rehearing of the Opinion. See Appendix C.
4
technicality from obstructing the ‘right’ outcome where
potentially innocent life is involved.
Fair criticism frequently is leveled against guilty
litigants who deploy technical arguments to relieve
themselves from accountability. Criminal defendants often
use constitutional protections to get a ‘win’, regardless
of their guilt. And we suffer these outcomes because, when
push comes to shove, our society values protections of
liberty and justice more than punishment. See Brief of
Amicus Curiae Eagle Forum of Alabama Education Foundation,
et al., dated November 9, 2015 (“Amicus”), at 17-18.
But in this instance, it is the government leveraging
technical arguments to wrongfully preserve a ‘win’. For
nearly a quarter century, the State has invoked a parade of
procedural defaults to prevent merits adjudication of the
substantive, fundamental, and devastating constitutional
violations that plagued Kuenzel’s 1987 trial.
Whether caused directly by the State or due to systemic
failures, the government’s special role is to ensure
justice. Where the State ignores prior transgressions in
the continued pursuit of a ‘win’, courts must intervene.
5
That the government acted unconstitutionally and
Kuenzel did not receive a fair trial are not seriously
disputed. The central debate has surrounded how to correct
these past errors, and who bears responsibility to ensure
they are corrected. “It is the State that tries a man, and
it is the State that must insure that the trial is fair.”
Dowdell v. Alabama, 854 So. 2d 1195 (Ct. Cr. App. 2002)
(Shaw, J., concurring).
The tension between what the rules permit and what
justice demands was on full display before the Court of
Appeals. Early on during oral argument, the Presiding
Judge asked, “even if we agreed with your -- that in our
hearts that you presented a strong case for a retrial, how
does this Court follow the law and give you a decision?”
Appendix A, 7:13-7:16.
Later, identifying the specific struggle in this case,
the court observed:
I think we agree that you presented a powerful
case. [But] Where does this Court have the
authority to ignore the plain mandate of the
preclusionary provisions of Rule 32? You know in
Marks v. State, a 2008 case, this Court found that
-- on direct appeal, a claim that there was a lack
of corroboration, had to be specifically part of a
motion for judgment of acquittal ... Now we could
not have made that decision if the failure to
corroborate accomplice testimony presented a
6
jurisdictional question. And we were forced to do
that in Ex parte Weeks, a previous opinion of the
Alabama Supreme Court, which found that in order
to raise a lack of corroboration you must
specifically argue that to the Trial Court in a
motion ... Now you see while those aren’t Rule 32
cases this Court is bound to recognize and deal
with jurisdictional issues on direct appeal.”
Id., 17:6-18:1.
Summarizing the central issue, Presiding Judge Welch
framed the matter as follows:
The question here is, let’s say that all of
us, our heart is with you, can we do our duty
and uphold the law in deciding your favor.
There is no -- I looked and unless I missed it
there is no case in Alabama that deals with
whether or not lack of corroboration presents
a jurisdictional issue in a post conviction
proceeding.
Id., 40:2 – 40:9. The answer is found in the need to
revisit and recalibrate certain jurisprudence surrounding
the historically significant corroboration requirement.
The duty to corroborate accomplice testimony is not a
simple technicality. An accomplice offered leniency in
return for testimony is predisposed to embellish, omit, and
outright fabricate stories. This is one reason why, for
thousands of years, societies have embraced accomplice-
testimony corroboration protections. See, e.g., Amicus at
10, 14-16. See also Reed v. State, 407 So. 2d 153, 158
7
(Ct. Cr. App. 1980), rev’d on other grounds, 407 So. 2d 162
(Ala. 1981) (“Our legislature recognized a fact which has
never been recognized in federal law -- that a guilty
party, when offered immunity from prosecution, will point
an accusing finger in any direction to avoid prosecution.
The more serious the penalty, the more likely a false
accusation will occur. Thus, our legislature, in order to
protect the innocent and to preserve the presumption of
innocence, has required additional evidence for a
conviction in such cases via § 12-21-222.”).
To execute Kuenzel, one must have confidence in Harvey
Venn’s testimony; absent sufficient confidence that Venn is
telling the truth, we cannot execute Kuenzel according to
the Alabama Code, and we should not, according to biblical
principles derived from natural law.
There is, in this case, a growing chorus raising
objection -- many proclaiming Kuenzel’s innocence outright,
see Morgenthau Aff. (R. 66.) –- based on such facts as:
Kuenzel has a credible alibi.
None of the witnesses who saw Venn at the
convenience store with a white male identified
Kuenzel as Venn’s companion.
8
Venn was seen alone prior to the crime, insisted
in his first statements that he arrived at the
store alone, and in those same statements told the
police that he met up with another white male at
the store whom the police never investigated.
Most damning, neither Venn nor the State can
account for how or why the victim’s blood is
splattered on Venn’s pants -- the only physical
evidence in this case.
Finally, Kuenzel repeatedly refused plea deals on
the basis of his innocence; the same deal that
Venn -- who was released in 1998 -- took.
At bottom, a great wealth of evidence that was unknown and
unknowable to Kuenzel when he was tried -- and in
substantial measure unconstitutionally suppressed -- never
has been considered by any court in the context of a claim
for substantive relief.
Although this Supreme Court has not yet been presented
with an after-discovered absence of corroboration claim in
a post-conviction posture, the rules clearly allow relief.
It is for cases like this that this Court always reserves
the right to invoke its supervisory powers. See Ala.
9
Const., art. IV, § 150; Amicus at 10, 14. The sanctity of
life, and basic notions of justice, each would be offended
if Kuenzel were executed under these circumstances. Id.
This Court, the font of justice of this State, should
accept this petition and permit Bill Kuenzel to demonstrate
his innocence through a new, fair trial.
STATEMENT OF THE ISSUES
This petition for a writ of certiorari presents three
issues:
(a) Whether a properly preserved claim under Ala. Code
§ 12-21-222 is jurisdictional in post-conviction
when the State presents no evidence that would
qualify as corroborative, and the failure of
corroboration is unknown due to illegal behavior
by the state.
(b) Whether the State’s suppression of material
evidence in this case warrants equitable tolling
of Rule 32.2(c) to permit review of 32.1(a) and
(e) claims.
(c) Whether, in light of the aggregated constitutional
errors that occurred during the 1987 prosecution
and trial, principles of natural law governing the
10
protection and sanctity of innocent life impose a
duty upon this Court to afford Kuenzel a single
merits-based examination in post-conviction of his
claims.
STATEMENT OF FACTS2
UNDERLYING FACTS OF THE CRIME
The following is a summary of the evidence relevant to
Kuenzel’s claims in the Petition.
A. The Total Evidence Known Today Relevant to the
Crime3
In the summer of 1987, William Kuenzel, 25, and Harvey
Venn, 18, became friends at the textile factory in
Goodwater, Alabama where they worked. (T.119-20 ; R. 170.)
In September 1987, Venn moved into Kuenzel’s nearby
residence. (T.119-20; R. 170.) In lieu of paying rent,
Venn drove them to and from work. (T.120; R. 170.)
Kuenzel did not own a car. (T.120; R. 170.)
2 Pursuant to Ala. R. App. P. 39(d)(5)(A)(i) and (ii), this
Statement of Facts is copied verbatim from the Statement of
Facts presented to the court of appeals in the application
for rehearing. The required certification is annexed
hereto as Appendix D.
3 The evidence that was unknown to Kuenzel at trial and on
direct appeal is denoted with an asterisk (“*”).
11
On Monday, November 9, 1987, Venn and Kuenzel worked
until 2:30 p.m., spent the afternoon driving around and
were last seen together around 7:00 p.m. (T.125-32; 448-
49; Ex parte Kuenzel, 577 So. 2d 531, 531-32 (Ala. 1991).)
Kuenzel consistently has maintained that Venn dropped
him off at their shared residence in Goodwater by 8:00 p.m.
(See, e.g., R. 170. See also T.566-68 (Kuenzel’s alibi
witness’s trial testimony).)
Sometime after 8:00 p.m. that same evening, Venn
visited two people: first, a friend named Chris Morris who
lived in Fayetteville, and next, Crystal Floyd, his then 13
year-old girlfriend who lived with her parents in Hollins.*
(R. 96, 104, 106, 108, 144, 149.) Floyd recalls her
interaction with Venn that evening, and describes why and
how she knew that Venn was alone.* (R. 144, 149.)
Incidentally, Floyd related her encounter with Venn to
at least the police, prosecutor and the grand jury.* (R.
144, 149.) Yet, Floyd did not testify at trial because she
was not called by the prosecution, and her grand jury
testimony was unknown to Kuenzel until post-conviction.
(See R. 76.) The prosecution withheld all statements made
by Floyd, and fee-capped defense counsel failed to conduct
12
any investigation into Floyd, having relied upon the
prosecution’s professed compliance with its disclosure
obligations after being “lulled into complacency” by
statements from the then-District Attorney, Robert Rumsey
(“Rumsey”). (Id.)
Venn next was observed by eight disinterested
individuals nearly continuously between 10:00 and 11:05
p.m. at the convenience store. (See, e.g., T.459, 470,
479, 484 and 504.) Each of those independent witnesses
uniformly testified they (i) saw Venn’s car, (ii) saw
and/or spoke with Venn and (iii) noticed that Venn was
accompanied by a white male. Despite ample opportunity,
not a single one of those witnesses identified Kuenzel as
the white male they observed with Venn.
It is important to note that the identity of this
individual is not a complete mystery. Unbeknownst to
Kuenzel until 2010, when Venn first spoke with the police
he told them on multiple occasions that the person seated
next to him in his car outside the store was a “friend”
named “David Pope,” and that Pope was a “white male” Venn
knew from school in “Millersville” when Venn was in 8th
grade and Pope was in 6th grade.* (R. 96, 102, 104, 106,
13
108.) Venn provided the police with a detailed description
of Pope, along with Pope’s approximate age, relationship to
Venn and likely residence.* (R. 96, 106, 108.) Venn also
confirmed he saw and spoke with a number of the witnesses
who had seen him at the store. (R. 96, 102, 104, 106,
108.) Yet, despite these valuable statements from Venn in
the days immediately following the crime, there is no
record of the police conducting any investigation into
Pope, no evidence of Pope’s photograph being shown to any
of the eight disinterested witnesses physically present at
the store and who failed to identify Kuenzel, and no
evidence whatsoever indicating how, if at all, Pope was
excluded as Venn’s companion.
Linda Jean Offord was 39 years old and a mother of
three children. Her shift as the store clerk ended at
11:00 p.m. but she agreed to cover for a co-worker running
late. At some point between 11:05 and 11:20 p.m., Ms.
Offord was killed by a single round fired from a .16 gauge
shotgun. Venn possessed a .16 gauge shotgun that evening,
* (T.140; R. 157), and Ms. Offord’s blood was found
splattered on the left leg of Venn’s jeans. Kuenzel v.
State, 577 So. 2d 474, 493 (Ct. Crim. App. 1990).
14
The police questioned Venn twice on Wednesday, November
11th.* (R. 96, 102, 104.) It is believed that the police
focused on Venn because his claim of being home by 10:00
p.m. was contradicted by statements from the eight
disinterested witnesses who observed him at the store
between 10:00 and 11:05 p.m.
In his first statements, Venn said that he had spent
the day with Kuenzel. (R. 96.) At approximately 8:00
p.m., he traveled alone to the home of his friend, Chris
Morris, to see about some concert tickets. (Id.) Morris
was not home, so Venn “went by his friend’s house to see if
he was there.” (Id.) Even though it was barely 48 hours
later, Venn denied being able to remember this friend’s
name. (Id.) However, previously undisclosed police notes
reveal that the officer taking Venn’s statement observed
that “his face got real flushed at the point when he’s
saying ‘This guy wasn’t home. Came on back towards
Hollins.’”* (Id.) Venn’s reluctance to name this “friend”
could be explained by these facts: Venn’s girlfriend at
the time, Crystal Floyd, lived in Hollins with her parents;
Floyd was only 13 years old; Floyd saw Venn that evening
around 9:00 pm (which Floyd told the grand jury but was
15
unknown to Kuenzel*), and observed that Venn was alone.
(R. 144, 149.)
Venn admitted to the police that he had visited the
store Monday evening, but insisted he arrived home shortly
after 10:00 p.m. and did not, therefore, commit the murder.
(R. 96.)
As for Kuenzel’s whereabouts that Monday, Venn told the
police: “He was in bed. Far as I can remember he was.”
(Id.) In fact, Kuenzel’s stepfather testified at trial
that, sometime after 10:00 p.m., he observed Kuenzel asleep
on a couch at the home he shared with Venn, 25 miles from
the convenience store. (T.566-68.)
Later that Wednesday night, November 11th, the police
executed a search warrant on Venn’s residence. Venn was
not home, but Kuenzel -- Venn’s roommate -- granted the
police permission to search the premises. The police
recovered the pants Venn wore Monday evening. They were
stained with Ms. Offord’s blood.
When the police asked Venn about the stains, he first
claimed it was “red paint” or “lead” from the textile
factory (see, e.g., id.); at trial, Venn changed his story
to testify -- again falsely -- that it was “squirrel
16
blood.” (T.165-66, 542-43.) It is an undisputed fact of
record that the stains on Venn’s pants are Ms. Offord’s
blood spatter — Rumsey conceded the point during his
summation. (T.673.) Although Venn denied entering the
store, there was no blood found anywhere outside the store,
except on Venn’s pants. (T.369-75.) Venn never has been
able to explain how or why Ms. Offord’s blood is present on
his clothes.
B. Venn Changes His Story to Implicate Kuenzel
At 2:20 a.m. on Sunday, November 15th, after days of
being held in state custody, interrogated without counsel,
and, upon information and belief, threatened with a capital
prosecution, Venn “confessed.” Venn conceded he was at the
store during the murder, but now implicated Kuenzel as his
companion and the triggerman. (R. 110.)
Later that day, the police contacted Kuenzel and asked
him to come in for questioning; he appeared voluntarily.
The prosecutor presented Kuenzel with a choice: he could
enter a guilty plea and testify against Venn in exchange
for an eight—to–ten year sentence, or he could go to trial
on capital murder charges, in which case the State would
seek the death penalty. Proclaiming his innocence, Kuenzel
17
rejected the plea deal. The prosecution then extended the
same deal to Venn, and he accepted -- Venn was released
from prison in 1997. (Notably, on the eve of trial, the
prosecution once again offered Kuenzel this arrangement
and, as before, he refused. (R. 170; R. 76.)
No physical evidence -- neither fingerprints, blood,
nor ballistics -- connects Kuenzel to the crime.
None of the eight witnesses physically present at the
store between 10:00 and 11:05 p.m. identified Kuenzel as
Venn’s “white male” companion, and David Pope cannot be
excluded as this individual.
C. April Harris’s Testimony and Ala. Code § 12-
21-222
It is undisputed that, excluding Venn’s testimony,
April Harris’s “identification” is the only evidence of a
direct link between Kuenzel and this crime. See Rumsey
Summation, T.682. Harris, a teenage passenger in a car
driving by who testified that, for a split-second around
“9:30 or 10:00”, she saw Venn and Kuenzel together inside
the store. On this basis, the jury was able to infer that
Venn largely was telling the truth about Kuenzel’s
involvement, that Kuenzel’s alibi witness must be lying,
and that Kuenzel must have been the unidentified white male
18
who was observed, with Venn, by the eight witnesses present
at the store.
There are a number of problems with Harris’s supposed
“corroboration”. First, Harris’s trial testimony
contradicts Venn’s testimony on certain meaningful points.
For example, Harris testified that she observed Venn and
Kuenzel at the store before the time that Venn claims he
arrived at the store. Equally, if not more, damaging,
Harris testified that she observed both Venn and Kuenzel
inside the convenience store, but Venn adamantly denied he
ever entered the store that evening. Unfortunately, the
immediately-preceding inconsistencies were not pointed out
by Kuenzel’s court-appointed counsel during his cross-
examination.
Nevertheless, it is possible that the jury, considering
all the evidence, noted the conflicting testimony, and
disregarded it; as the Court of Criminal Appeals held,
“[t]he credibility of the witnesses who supplied the
corroboration of the accomplice’s testimony was for the
jury and not an appellate court.” Kuenzel v. State, 577
So. 2d at 515. But, even assuming the jury’s considered
rejection of the foregoing inconsistencies, we know for
19
certain that the jury never accounted for Harris’s grand
jury testimony.
Harris’s grand jury testimony reveals fatal defects in
her alleged “corroboration” testimony at trial, it became
available only recently, and it precludes any claim that
Harris’s testimony can be used to in any way satisfy Ala.
Code § 12-21-222. Specifically, unbeknownst to Kuenzel and
denied by the State until 2010, Harris told the grand jury
just four months after the crime occurred that she
“couldn’t get any description.”* (R. 90.) Upon prompting
by Rumsey, Harris explained she “believed it was them [Venn
and Kuenzel],” but that the basis of her “belief” was
having seen Venn’s car parked outside the store and two
people of similar height and with similar hair to that of
Venn and Kuenzel.* (Id.) Yet, Harris could provide no
further description of the individuals, flatly admitting
before the grand jury that she “couldn’t really see a
face.” (Id.)
As the Court of Criminal Appeals recognized, Harris’s
trial testimony was the essential link permitting
satisfaction of Ala. Code § 12-21-222, and thereby the case
validly proceeding to trial. See Kuenzel v. State, 577 So.
20
2d at 514-15. We now know that Harris’s testimony is a
nullity insofar as it purports to connect Kuenzel with Venn
or the crime.
D. Discovery of Additional New Evidence
Establishing Innocence
The evidentiary picture known today is vastly different
than the one considered by the jury in 1988.
The new evidence was uncovered, first, by Kuenzel’s pro
bono post-conviction attorney. During his initial
investigation in the mid-1990’s, pro bono post-conviction
counsel recovered the shotgun that Venn testified he
borrowed from a co-worker and possessed in his car on the
night of the murder. (T.123.) It is a .16 gauge shotgun,
the same gauge as the murder weapon. (R. 157.)
But at trial, Venn testified that his borrowed shotgun
was a .12 gauge. The prosecution never introduced Venn’s
shotgun into evidence, and Kuenzel’s trial counsel never
investigated Venn’s weapon. Two of the three witnesses the
defense presented -- including Kuenzel’s alibi, his step-
father -- testified that, one day before the murder,
Kuenzel returned a .16 gauge shotgun that he had borrowed.
Only Venn testified that Kuenzel returned his borrowed
shotgun after the murder took place. But since the murder
21
weapon was a .16 gauge, the jury had to find that someone
possessed a .16 gauge. Even though Venn was impeached with
his prior testimony that he did not know when or how
Kuenzel’s borrowed shotgun had been returned (see T.170; R.
120), given that Venn’s shotgun was presented as a .12
gauge, jurors necessarily believed that Kuenzel’s witnesses
must be lying about Kuenzel returning his .16 gauge.
Kuenzel’s present ability to challenge this evidence where
he could not at trial would be of critical importance.
(See Rumsey Summation, T.677 (“[T]here is no other gun,
other than a .16 gauge shotgun that killed that woman.”).)
Additionally, although the prosecution did not present
any motive to support why Kuenzel might want to rob a
convenience store, we now know that Venn had been borrowing
money from at least his 13-year old girlfriend and from
Kuenzel (R. 144, 170), and that Venn needed $500 to secure
an attorney’s appearance on his behalf at a drug hearing
the following Monday, November 16, 1987. (R. 168.)
In February 2010, other new evidence was revealed by
the prosecution when an Assistant Attorney General visited
the home of Crystal Floyd. He carried with him a bag of
documents that Floyd had never before seen, and that had
22
not yet been disclosed to Kuenzel or any court in any
proceeding. After the State’s attorney left, Floyd
contacted one of Kuenzel’s counsel and informed him of this
visit.
As a consequence of that interaction, the State
subsequently produced numerous documents that had been
withheld for almost a quarter century, including grand jury
testimony from Harris, Floyd, and others, as well as police
interviews conducted with Venn shortly after the crime. In
addition to describing David Pope as a possible alternative
suspect, one of those statements reflected a police
officer’s observation of bruises on Venn’s left eye and
left arm, just two days after the murder. (R. 96.)
Kuenzel promptly retained Dr. James Gill, Deputy Chief
Medical Examiner for the City of New York, to examine the
autopsy record. Acknowledging the limitations of his
examination and what could have been done at the time of
trial had Venn’s initial statements been disclosed, Dr.
Gill concluded to a reasonable degree of medical certainty
that “the evidence is consistent with a factual scenario
whereby Venn and Ms. Offord were involved in a physical
23
altercation with one another shortly before Ms. Offord’s
death.” (R. 185, 188.)
There are two principal reasons why this evidence was
not previously discovered and presented for the jury’s
consideration. First, the prosecution engaged in
misconduct that was, at best, grossly negligent, and at
worst, flagrant and tactical, including: the suppression
of key evidence; provision of false testimony; fraudulent
in-court representations concerning disclosure of Brady
materials; and a remarkably uncritical police
investigation. Underscoring the prosecution’s misconduct
pre-trial, there are now two pieces of evidence
inexplicably missing from the Talladega County evidence
locker: Venn’s bloody pants and the shotgun the State
alleges to be the murder weapon.
The second reason why Kuenzel failed to be acquitted at
trial is the acknowledged failures of his inexperienced,
overworked and statutorily fee-capped counsel. Mr.
Willingham conducted virtually no factual investigation,
leaving untouched the lowest-hanging of fruit during the
27.75 hours that he collectively devoted to witness
interviews and discovery-related matters pertaining to both
24
guilt and sentencing phases. (See generally R. 76.) While
not an excuse, Mr. Willingham was handling two capital
cases simultaneously, the $1,000 reimbursable fee cap
caused him to “limit [his] out-of-court time on each of
these cases,” and he felt “lulled into complacency” by
Rumsey, who informed Mr. Willingham “that the prosecution’s
case was problematic.” (R. 77-78.) As Mr. Willingham
candidly admits:
In these circumstances, the evidence that was readily
available to me seemed sufficient to win the case, and
so, given all of the other constraints under which I
was working, I did not pursue investigative leads that
might have led me to much more persuasive evidence of
[Kuenzel’s] innocence.
(R.78.)
Mr. Willingham also relied to his and Kuenzel’s
detriment on the prosecution’s false claim that all Brady
material had been produced, including Rumsey’s specific
representations that all statements given by Venn to the
police had been turned over.
RELEVANT PROCEDURAL HISTORY
The Opinion at *1 through *4 accurately sets out the
relevant procedural history of this case, except that
Kuenzel would respectfully clarify three points, and
include one additional column of information.
25
First, to the discussion at *1 through *2 of the
Opinion, Kuenzel would add that his initial Rule 32 post-
conviction petition was timely filed on October 4, 1993,
within the two-year limitations period of Rule 32.2(c), if
the statute began to run from the date of the United States
Supreme Court’s denial on direct appeal (March 28, 1991),
as opposed to the Alabama Supreme Court’s denial on direct
appeal (October 7, 1991) -- a discrepancy of six months at
a time when Kuenzel did not have counsel.
Second, relevant underlying law governing the
timeliness of post-conviction filings and the consequences
of filing late has, quite literally, developed in parallel
to this case’s 22-year journey through state and federal
post-conviction proceedings. For example, Alabama law
concerning timeliness remained deeply unsettled and was the
subject of active litigation between, at least, 1993 and
2000. Kuenzel’s Rule 32 petition was first ruled untimely
by the Circuit Court in 1994. In 1996, the Circuit Court
granted Kuenzel’s motion for reconsideration, vacated its
prior dismissal ruling on timeliness, and reinstated
Kuenzel’s Rule 32 petition -- only to once again
“reinstate” the penultimate order in 1999. Like shifting
26
sand beneath his feet, Kuenzel lacked clear jurisprudential
guidance throughout his post-conviction journey.
Third, Kuenzel would clarify that, following second
remand in federal proceedings, the district court held that
Kuenzel failed to make a sufficient – as opposed to
“credible”, Opinion at *3 – “showing of actual innocence”
pursuant to Schlup v. Delo, 513 U.S. 298 (1995).
Finally, worth noting are Kuenzel’s continuous efforts
to obtain disclosure of, at least, all exculpatory and
impeachment evidence, including the State’s (a) wrongful
misrepresentations about this evidence’s existence, and (b)
illegal suppression of material evidence for decades.
For example, on June 15, 1988, Kuenzel’s trial counsel
Mr. Willingham filed a pre-trial motion for production and
disclosure with the Circuit Court that included, among
other things, a request for any and all Brady material. On
August 2, 1988, the trial court conducted a hearing at
which Kuenzel’s discovery requests were addressed. At that
hearing, Rumsey generally agreed to comply with Kuenzel’s
discovery requests.4 Yet, in response to the District
4 See Transcript of Hearing, dated August 2, 1988, at pp. 14-
16.
27
Attorney’s characterization of certain evidence in its
possession as non-exculpatory, and therefore not required
to be produced, Kuenzel’s trial counsel requested an in
camera review of any statements made by any witnesses for
potential Brady material, with the State to provide all
witness statements to Judge Sullivan:
MR. WILLINGHAM: Judge, the only thing I would move
for. Of course, Mr. Rumsey is turning over to us what
he feels is exculpatory but we move it be ultimately
the Court’s decision as to what is exculpatory and what
is not exculpatory. We would ask for any statements
made by any witnesses be examined for exculpatory
[Brady material], … [including] any statements that
[the State] would have gotten from any witnesses that
they would contend is work product. Of course, without
seeing it, we wouldn’t know. But we would ask the
Court to examine those things in camera and ask that
copies be made for the Court’s file for any possible
appellate review.
THE COURT: Okay.5
On the first day of trial, the State produced to Judge
Sullivan what it claimed were all relevant witness
statements (T.88-91), and Judge Sullivan later ruled that
none of the materials provided by the State for in camera
inspection contained exculpatory statements.
Significantly, none of the materials in the trial or
appellate record include statements made to any agent of
5 Transcript of Hearing, dated August 2, 1988, at pp. 22-23.
28
the State or the grand jury by, among others, April Harris
or Crystal Floyd.
Later on at trial, Mr. Willingham asked Officer Dusty
Zook, “Has anybody made available to you any information
that would exculpate our client in this case?” (T.440.)
Rumsey objected, representing that “I’ve given them
[Kuenzel] the substance of the [exculpatory] statements.”
(T.441.) Kuenzel’s counsel protested, arguing that Rumsey
“has made available some information to her [Dusty Zook]
that he will not make available to us, and we can’t plead
surprise with him not talking with us, your Honor.”
(T.441-42.) The Court sustained Rumsey’s objection.
(T.442-43.)
In state Rule 32 proceedings, Kuenzel filed two
discovery motions generally seeking discovery, an
evidentiary hearing and funding for expert and
investigative assistance. The State did not oppose
Kuenzel’s discovery motions, yet the Circuit Court never
addressed or ruled upon them. On three separate occasions
in federal habeas proceedings, Kuenzel filed motions for
discovery and/or an evidentiary hearing. As in the Rule 32
proceedings, the State did not oppose Kuenzel’s discovery
29
motions, but the district court never addressed or ruled
upon them.
Notably, Kuenzel’s trial occurred prior to the Alabama
Supreme Court’s landmark decision in Ex parte Monk, 557 So.
2d 832 (Ala. 1989), establishing broadened rights to
discovery at trial in a capital case. Id. at 836-37.
Here, the District Attorney’s false representations were
taken at face value, and Kuenzel was denied the protections
of Monk’s holding that the death penalty justifies expanded
discovery in capital cases.
STATEMENT OF THE STANDARD OF REVIEW
As applicable here, this Court may grant the petition
for a writ of certiorari because:
(a) A material question requiring decision is one of
first impression for the Supreme Court of Alabama,
to wit, whether lack of corroboration, unknown due
to illegal behavior, presents a jurisdictional
issue in a post-conviction proceeding (Ala. R.
App. P. 39(a)(1)(C));
(b) This case challenges whether controlling Alabama
Supreme Court case law that was followed in the
decision of the Court of Appeals is due to be re-
30
examined, qualified, or overruled (Ala. R. App. P.
39(a)(1)(E)), to wit, Ex parte Weeks, 591 So.2d
441 (Ala. 1991); and
(c) Because the Court of Appeals failed to recognize
as prejudicial plain error and manifest structural
defects in the original 1987 trial (Ala. R. App.
P. 39(a)(2)(A) and (B)).
SUMMARY OF THE ARGUMENT
Ala. Code § 12-21-222 commands that a “conviction
cannot be had” absent sufficient corroboration. The test
is well-defined, and requires eliminating the accomplice’s
testimony before determining whether the remaining evidence
tends to connect the defendant with the offense in a
material, non-speculative way.
In some circumstances not present here, a claim of
inadequate corroboration may be non-jurisdictional.
However, where, as here, the prosecution’s illegal
suppression conceals the government’s inability to provide
any evidence of corroboration, a jurisdictional challenge
may arise in the post-conviction context.
Where the inquiry concerns the existence of qualifying
corroborative evidence, and the failure to corroborate was
31
previously unknown due to illegal conduct, a post-
conviction claim under § 12-21-222 is jurisdictional. As
there is no case adjudicating this issue, Kuenzel submits
that certiorari review by the Alabama Supreme Court is
appropriate.
Corroboration of accomplice testimony is a critical
structural protection to ensure that only the guilty are
convicted, with roots tracing back to the earliest written
laws. See, e.g., Amicus at 14-16. This rule is directed
to the sanctity of life, implicating core principles of
fairness and justice. When lack of corroboration is raised
in a post-conviction setting, based on evidence that was
not previously reviewed, the claim affects the legality of
the conviction and, by extension, the court’s jurisdiction.
Although 32.1(b) claims affecting jurisdiction may be
raised at any time, new facts to establish 32.1(e)
innocence are subject to Rule 32.2(c) timeliness
requirements. Equitable tolling has been granted, however,
where “extraordinary circumstances” directly affect the
timeliness of a petition’s filing. There exists no
precedential or temporal constraints upon this court’s
power to equitably toll its own statute, nor is there a
32
prohibition on this court’s power to insure that justice is
done. See Alabama Const., art. IV, § 150; Amicus at 16-20.
Here, extraordinary circumstances warrant equitable tolling
to permit a single opportunity for review of the underlying
conviction.
ARGUMENT
POINT I
MERITORIOUS § 12-21-222 CLAIMS ARE JURISDICTIONAL IN
POST-CONVICTION CAPITAL CASES WHERE LACK OF
CORROBORATION IS PREVIOUSLY UNKNOWN DUE TO ILLEGAL
BEHAVIOR BY THE STATE
Where the allegedly corroborating evidence fails to
connect the defendant to the crime absent reference to the
accomplice’s testimony, there is no corroboration and a
conviction “cannot be had.” Ala. Code § 12-21-222. See
generally McCullough v. State, 21 So. 3d 758, 761-64 (Ala.
2009); Williams v. State, 72 So. 3d 721, 722-24 (Ct. Cr.
App. 2010). For the reasons stated below, this claim may
present a jurisdictional issue in a post-conviction
proceeding.
A. The Corroboration Rule Is A Material
Protection
The obligation to sufficiently corroborate accomplice
testimony traces back thousands of years. This history
33
underscores universal recognition “that prosecuting
witnesses may be sincerely mistaken or may lie” and that
“[s]ufficient corroboration is intended to protect the
innocent by preventing the accused from suffering a false
accusation that would lead to his unjustified execution.”
See Amicus at 15.
It must also be remembered that the Legislature
recently had the opportunity to reconsider § 12-21-222. In
2012, Senator Gerald Dial introduced a bill to repeal this
statute, and that legislation failed to advance. See
SB475, 139673-1 (Apr. 5, 2012). As such, there is no
reason to presume that the Legislature is reconsidering
this statute, and there certainly is no reason to believe
the Legislature wants innocent citizens to be executed.
B. Weeks Should Be Overruled, or Qualified for
Post-Conviction Claims Arising From Brady
Violations
The Court of Appeals refused to consider whether Venn’s
testimony was illegally corroborated because Ex parte
Weeks, 591 So.2d 441 (Ala. 1991), holds that § 12-21-222
challenges can be waived on direct appeal, reasoning that:
[A] claim that a conviction is based on the
uncorroborated testimony of an accomplice is
waived on direct appeal if not properly and
specifically presented to the trial court. ...
34
Because a claim that a conviction is based on the
uncorroborated testimony of an accomplice can be
waived, it is necessarily a non-jurisdictional
claim.
Opinion at *6-*7. No case is cited for that proposition in
the post-conviction context because it does not exist.
The Court of Appeals correctly observed during oral
argument that “there is no case in Alabama that deals with
whether or not lack of corroboration presents a
jurisdictional issue in a post conviction proceeding.”
Appendix A, 40:6-40:9. The facts and posture of Rule 32
proceedings are materially different than “cases that deal
with jurisdictional questions in terms of preservation on
direct appeal.” Id., 40:9-40:12. When new evidence arises
in the post-conviction context, § 12-21-222 claims may
raise a jurisdictional challenge.
1. Weeks is an Aberration
It is significant to note that the “waiver” contention
relied on by the Court of Appeals is highly questionable as
regards the corroboration requirement. In Ex parte Weeks,
this Court created a special rule for preserving claims of
35
insufficient corroboration of accomplice testimony.6 While
a judgment of acquittal is preserved by a general objection
to the sufficiency of evidence, Weeks commands specific
presentation of the challenge to corroboration for direct
appeal review. 591 So.2d at 442.
The question is critical, because failure of
corroboration means that the State has failed to establish
an element of the crime. As the Chief Justice recently
pointed out in dissent from the quashing of the writ of
certiorari in Gaston v. State, 2015 Ala. LEXIS 79 (Ala.
June 12, 2015), § 12-21-222, in its own terms, demands
that:
if a conviction for a felony is based on an
accomplice’s testimony, then there must be
corroborating evidence tending to connect the
defendant with the commission of the offense. It
would appear, then, that if the State does not
present such corroborating evidence, it has not
presented sufficient evidence to send the question
of the defendant’s guilt to the jury.
Id, at *13 (dissent, Moore, C.J.). If the failure to
present “such corroborating evidence” prohibits submission
of a case to the jury, the claim is jurisdictional.
6 Petitioner does not allege insufficient corroboration, but
lack of any corroboration. See Infra, at 42-47. Thus the
Weeks doctrine, even if retained, does not avail the State.
36
The Court of Appeals in Marks v. State, 29 So. 2d. 166,
172 (Ct. Cr. App. 2008) was equally critical of Weeks. In
Marks, trial counsel objected that the State’s evidence did
not establish beyond a reasonable doubt all the elements of
the crime charged. Although noting that Weeks was an
“anomaly” among Supreme Court precedent, the appellate
court deemed itself bound to apply Weeks and barred
consideration of a claim of alleged lack of corroboration
of accomplice testimony.7
As the Court of Appeals pointed out in Marks, failure
to specify a lack of proof for particular elements of a
crime had, prior to Weeks, not waived the argument on
appeal, citing Ex parte Maxwell, 439 So. 2d 715 (Ala.
1983), and that rule had been routinely applied in other
accomplice testimony cases such as Adkison v State, 548 So.
2d 606 (Ct. Cr. App. 1988).8
7 In Marks, Judge (now Justice) Shaw called for this Court to
revisit Weeks. 20 So. 3d at 172.
8 “The appellant argues that his conviction should be
reversed because it as based upon uncorroborated accomplice
testimony, in violation of § 12-21-222, Code of Alabama
(1975). The appellant made a motion for judgment of
acquittal, stating ‘that the State had not made out a prima
facie case . . ..’ That ground was sufficient to preserve
this matter for our appeal.” 548 So. 2d at 609.
37
Correspondingly, lack of proof of a necessary element
of the crime charged has been deemed preserved for appeal
where (i) the alleged missing element is proof of previous
conviction of a crime of violence in a prosecution for
possessing a pistol after such previous conviction, Ex
parte Johnson, 620 So. 2d. 665, 668 (Ala. 2002), (ii) the
State allegedly failed to prove the municipal ordinance
under which the defendant had been prosecuted, Ex parte
Hall, 843 So. 2d 746, 748 (Ala. 2002), and (iii) the State
allegedly failed to prove in a felony murder prosecution
that the death was caused by a participant in the felony,
Ex parte Parks, 923 So. 2d 330, 335 (Ala. 2005).
The law of this state, with the single exception of the
corroboration of accomplice testimony requirement, has been
that convictions lacking proof of a necessary element of
the crime charged are preserved by the inevitable motion
for judgment at the end of the trial, and thus are
jurisdictional for preservation purposes. The Chief
Justice in Gaston wrote: “In the appropriate case, this
Court should consider overruling Weeks and Marks.” Gaston,
2015 Ala. LEXIS 79, at *14.
38
2. A Contextual Analysis Is Necessary To
Determine Whether a Claim Is Jurisdictional
A single issue can be both non-jurisdictional and
jurisdictional, depending upon the context in which it is
raised. For example, double jeopardy claims are
classically construed as jurisdictional. Yet, this Court
recognizes that whether a double jeopardy claim is or is
not jurisdictional depends upon the circumstances of when
and how it is presented. See, e.g., Heard v. State, 999
So. 2d 992, 1005 (Ala. 2007) (quoting Ex parte Benefield,
932 So. 2d 92, 94-95 (Ala. 2005)). “[I]f a double jeopardy
claim is viable before trial, then the defendant must
object by pretrial motion, or the double jeopardy claim is
foreclosed.” Benefield, 932 So. 2d at 94.
Despite the exceptions, many violations of double
jeopardy rights raise questions of the trial court’s
jurisdiction to enter a verdict. See, e.g., Ex Parte
Robey, 970 So. 2d 1069, 1071-72 (Ala. 2004). “[B]ecause
[defendant’s] double-jeopardy claims raised jurisdictional
issues, they could not be waived and thus can be raised at
any time.” Heard, 999 So. 2d at 1006.
Accordingly, the ability to waive cannot be the
touchstone of whether or not a given issue is
39
jurisdictional. The ability to waive instead follows from
the contextual analysis of whether the claim is addressed
to the court’s power to adjudicate a claim. See generally
Neder v. U.S., 527 U.S. 1, 8-9 (1999) (collecting cases).
Consistent with jurisprudence surrounding double
jeopardy claims, the failure to satisfy the corroboration
statute can be both a jurisdictional defect and non-
waivable, and non-jurisdictional: when presented as a
claim of sufficiency of the evidence that otherwise
satisfies “corroborative” evidence, the claim is non-
jurisdictional; in contrast, where the claim is addressed
to the existence of evidence meeting the threshold
definition of “corroborative”, the claim concerns the
legality of the conviction itself and is jurisdictional.
3. Illegality of the Conviction Identifies Claims
Raising Jurisdictional Defects
As discussed above, the relevant question is not
whether a particular claim must be specifically preserved
on direct appeal; instead, it is whether and when § 12-21-
222 claims constitute “illegal” convictions for Rule
32.1(b) purposes. See, e.g., Bradley v. State, 925 So. 2d
232, 234 (Ala. 2005) (errors addressed to whether the
conviction is legal or illegal, as opposed to a sentence,
40
are jurisdictional). Because, by the text of § 12-21-222
itself, a conviction based on uncorroborated accomplice
testimony “cannot be had”, such conviction is illegal and,
thus, presents a jurisdictional issue.
A conviction is illegal and cannot stand where a
necessary element of the crime is missing. The point is
incontestable as regards a sentence that is imposed without
statutory authority. “Matters concerning unauthorized
sentences are jurisdictional,” and “[t]hus this Court may
take notice of an illegal sentence at any time.” Enfinger
v. State, 2012 Ala. Crim. App. LEXIS 113, *5 (Ct. Cr. App.
Dec. 14, 2012). Enfinger makes clear that the inquiry is
not whether counsel preserved a claim for review, but
whether the claim is “jurisdictional” in its own terms, for
in Enfinger no challenge to the sentence was made in the
trial court at all.
The doctrine is explicated in McClintock v. State, 773
So.2d 1057 (Ct. Cr. App. 2000), in which an enhanced
sentence otherwise validly imposed was rendered illegal
because an essential element of the enhancement –- namely,
valid predicate convictions -- was not proved at trial.
41
In McClintock, the defendant was given an enhanced
sentence based on a prior 1986 conviction which was set
aside in January of 1989. In February of 1989, defendant
filed a Rule 32 petition raising the HFOA claim, but the
petition was summarily dismissed in April of 1989. In June
of 1999, McClintock filed another Rule 32 petition, raising
the same argument about the invalidity of his enhanced
sentence. The Circuit Court again dismissed the petition
as successive.
But the Court of Appeals reversed, holding that
challenges to the legality of a sentence are jurisdictional
and can be raised at any time. The Court of Appeals
explained that:
[A] conviction that has been set aside or reversed
may not be used to enhance a penalty. Because
McClintock’s conviction in case no. CC-85-2744 was
set aside in January 1989, McClintock was entitled
to be resentenced for his first-degree escape
conviction, with the circuit court considering
only two prior felony convictions . . . for
enhancement purposes. However the circuit court’s
April 1989 order, which indicated merely that
McClintock’s life sentence was within the
authorized statutory range, fails to establish
that McClintock was properly resentenced using two
prior felony convictions, rather than three, for
enhancement. Because McClintock has not received
a sentencing hearing at which only two prior
felony convictions were considered for enhancement
purposes, his sentence is illegal. Therefore, the
claim in his present Rule 32 petition is not (as
42
the circuit court found in its October 12, 1999
dismissal), subject to the procedural bar of Rule
32.2(b).
McClintock, 773 So. 2d at 1059 (emphasis added; internal
citations omitted).
The same rule enunciated in McClintock applies where
the alleged procedural default is failure to file an
initial Rule 32 petition within the statutory period. See
Barr v. State, 4 So. 3d 578 (Ala. Cr. App. 2008).9 The rule
also applies where the alleged procedural default is
failure to file an appeal from the conviction which
included the enhanced sentence. See Horn v. State, 913 So.
2d 539, 542 (Ct. Cr. App. 2004). In sum, “Matters
concerning unauthorized sentences are jurisdictional and,
therefore, can be reviewed even if they have not been
preserved.” McHarris v. State, 678 So. 2d 258, 259 (Ct.
Cr. App. 1995) (citations omitted).
By the plain language of § 12-21-222, a “conviction
cannot be had” absent sufficient corroboration. Although
the “sufficiency” of the corroborating evidence presents a
9 Notably, this is the same default that prevented Kuenzel
from having his underlying constitutional claims reviewed
during initial Rule 32 proceedings.
43
mixed question of law and fact, the “existence” of
corroborating evidence is a question of law. It is as to
this latter category of claims that Kuenzel’s argument is
addressed.
The errors that occurred here are of the type Chief
Justice Rehnquist described as “affecting the framework
within which the trial proceeds, rather than simply an
error in the trial process itself.” Neder v. U.S., 527
U.S. at 8 (quoting Arizona v. Fulminante, 499 U.S. 279, 310
(1991)). “Such errors ‘infect the entire trial process,’
Brecht v. Abrahamson, 507 U. S. 619, 630 (1993), and
‘necessarily render a trial fundamentally unfair,’ Rose v.
Clark, 478 U.S. [570,] at 577 [(1986)]. Put another way,
these errors deprive defendants of ‘basic protections’
without which ‘a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or
innocence ... and no criminal punishment may be regarded as
fundamentally fair.’ Id. at 577-578.” Neder, 527 U.S. at
8-9.
C. This Case Illustrates Why Weeks Should Be
Reconsidered, and Possibly Overruled
For Mr. Kuenzel to be legally convicted, he must be
legally tried. Under Alabama law, that means his
44
conviction must rest on more than the uncorroborated
testimony of an accomplice. Due to the withheld evidence,
that did not happen. The present case is an appropriate
vehicle to revisit the Weeks holding and either revise,
qualify, or overrule the anomalous separate preservation
rule for accomplice testimony.
Kuenzel was convicted at trial on the testimony of
Harvey Venn, who told the jury that he was petitioner’s
accomplice. On direct appeal, the Court of Appeals
sustained the conviction, citing as the only corroboration
of Venn’s testimony the testimony of April Harris. Kuenzel
v. State, 577 So. 2d at 514-15.
As demonstrated at Point I(C) of the Statement of Facts
herein, April Harris’s grand jury testimony, which was
withheld for decades by the prosecution, would have
precluded her identification at trial for lack of
foundation. By withholding Harris’s grand jury testimony,
the prosecution improperly allowed this case to go to a
jury.
The State’s belated disclosure of April Harris’s grand
jury testimony reveals the stark absence of any evidence
that satisfies Ala. Code § 12-21-222 because, as the Court
45
of Appeals identified in its 1990 opinion on direct appeal,
April Harris was essential to establish corroboration.
Kuenzel v. State, 577 So. 2d at 514-15. Applying the
subtraction rule, the court held:
Excluding Venn’s testimony, the evidence shows
that the murder was committed shortly after 11:00
p.m. April Harris testified that she saw Venn’s
car at the store between 9:30 and 10:00 p.m. and
that she saw both Venn and [Kuenzel] inside the
store at that time. Other witnesses testified
that Venn and an unidentified white male were at
the store sitting in Venn’s automobile around
10:00 or 10:30 p.m. In our opinion, this
testimony, while certainly not overwhelming, was
sufficient to corroborate Venn’s testimony and to
satisfy the requirements of § 12-21-222.
Id.
Here, it is unnecessary to “weigh the evidence”
because, as the Court of Appeals recognized, without April
Harris’s testimony there simply is no other qualifying
evidence of corroboration to consider. See, e.g., Jackson
v. State, 98 So. 3d 35 (Ct. Cr. App. 2012); Green v. State,
61 So. 3d 386 (Ct. Cr. App. 2010); Miles v. State, 476 So.
2d 1228, 1234-35 (Ct. Cr. App. 1985); Anderson v. State, 44
Ala. App. 388, 391-92, 210 So. 2d 436 (Ct. Cr. App. 1968).
Excluding Venn’s testimony, there never was, nor is there
46
today, any evidence directly linking Kuenzel to the murder
or suggesting his involvement.10
Compounding the damage caused by the willful
suppression, during summation, prosecutor Rumsey’s closing
arguments heavily leveraged Harris’s positive
identification of Kuenzel and resultant corroboration of
the veracity of Venn’s account:
As to where the cars were parked and
everything else, I’m not going to continue to
go through that. But I’ll tell you this.
April Harris says she saw them in there. And
April Harris ain’t no surprise in coming up
here. She has been around a long time. Ever
since Day One in this case. And she says she
saw Vinn [sic] and Kuenzel in there.
Rumsey Summation, T.672.
The importance of Harris’s testimony to the
prosecution’s satisfaction of its burden to prove
jurisdiction cannot reasonably be disputed, nor can it be
overstated. Given Harris’s grand jury testimony, she could
not have later testified to positively observing Kuenzel,
10 See Rumsey Summation, T.682 (“I submit this case is not all
circumstantial evidence. There is a lot of direct
evidence. I submit that Harvey Vinn [sic] told you the
best he could. He didn’t remember everything that happened
that night. Not in detail on the time frames. There is no
question about that.”); T.666 (“Harvey Vinn [sic] is not
circumstantial evidence. Harvey Vinn [sic] is direct
testimony.”).
47
Venn, or, for that matter, any specific individual. And,
absent Harris’s corroboration, the other evidence presented
by the prosecution does not even “raise a suspicion of
guilt,” which itself is plainly insufficient to satisfy §
12-21-222. See, e.g., Williams v. State, 72 So. 3d 721
(Ct. Cr. App. 2010).
As Kuenzel demonstrated in his Petition at pages 26-34,
neither the trial court nor the direct appeal courts could
adequately have considered the § 12-21-222 claim because
they lacked access to critical facts. And those facts were
absent at the time of trial, on direct appeal, and
throughout original Rule 32 proceedings because crucial
evidence undermining the prosecution’s theory was illegally
withheld by the State.
Unlike in Gaston, where the issue of corroboration was
front and center during the trial, and counsel’s failure to
specify lack of corroboration as an explicit ground for
dismissal was arguably a conscious and intentional tactical
decision, the infirmities in April Harris’s testimony only
became known when her grand jury testimony was finally
revealed years later.
48
And unlike defendant Gaston, defendant Kuenzel was
sentenced to death. “The hovering death penalty” justifies
the abandonment of an inexplicably stringent preservation
rule for accomplice testimony as applied to post-conviction
claims, and the recognition that lack of corroboration is a
jurisdictional defect in a conviction that hinged on
accomplice testimony. See Ex parte Monk, 557 So.2d 832,
836-37 (Ala. 1989). See also Amicus at 10-18.
Thus, the issue has moved from whether the
corroborative testimony was persuasive, to one of whether
there is any corroboration at all. This reformulation of
the inquiry transforms the corroboration point from non-
jurisdictional to jurisdictional -- which makes perfect
sense. Had trial counsel known of the grand jury testimony
and failed to use it effectively, a challenge to the
sufficiency of the Harris trial testimony, testable at the
time it was given, would be subject to waiver analysis.
But because the grand jury testimony was unknown and
unknowable at the time of trial, the legality of the
conviction is tainted.
At bottom, corroboration is a “gating” issue and the
prosecution illegally shielded its inability to satisfy
49
this requirement at trial, and for decades thereafter.
Because we now know that Venn’s testimony alone served as
the single pillar underpinning the prosecution’s direct
evidence connecting Kuenzel to the commission of this
crime, the Circuit Court lacked the power to submit the
case to a jury pursuant to § 12-21-222. Thus, Kuenzel’s
conviction must be vacated pursuant to Ala. R. Crim. P.
32.1(b).
Finally, to the extent there are factual disputes, it
was error to accept the State’s version of events as true
at this stage of proceedings. At a minimum, the Court
should permit one opportunity to consider the competing
narratives before ruling upon the summary dismissal motion.
POINT II
UNDER THE PRESENT CIRCUMSTANCES, KUENZEL’S CLAIMS ARE
ENTITLED TO THE BENEFIT OF EQUITABLE TOLLING
The Court of Appeals also held that Kuenzel’s time-
barred claims are ineligible for equitable tolling. See
generally Opinion at *11-*13. The Court of Appeals
recognized that equitable tolling is appropriate when
“extraordinary circumstances” outside of the petitioner’s
control prevent the petitioner from timely filing, see id.
at *12 (citing cases), and that there is no express
50
limitation upon the “‘extraordinary circumstances
justifying the application of the doctrine of equitable
tolling.’” Id. (quoting Ex parte Ward, 46 So. 3d 888, 897
(Ala. 2007)). Yet, the Court of Appeals disavowed the
ability to apply equitable tolling here.
According to the Court of Appeals, it is bound to find
Kuenzel’s corroboration claim “time-barred by Rule 32.2(c)
because Kuenzel’s petition was filed over 20 years after
his conviction and sentence became final.” Opinion at 9.
Of course, Kuenzel could not have raised this claim in
1993. When Kuenzel filed his initial Rule 32 post-
conviction petition 22 years ago, he was unaware of April
Harris’s grand jury testimony. The government did not
disclose this evidence until 2010. Our position is that it
is unfair to bar previously undisclosed grand jury
testimony of April Harris from being fully considered.
As to Kuenzel’s 32.1(e) claim, the Court of Appeals
responds by noting that Kuenzel could have filed this
successive petition earlier; beginning either in the late-
1990’s, when new evidence was first uncovered by pro bono
counsel, at various points during the 2000’s, when
additional evidence was uncovered through pro bono
51
counsel’s independent investigation, or in 2010,
immediately after the State revealed the existence of long-
suppressed grand jury testimony and police notes, among
other materials. Opinion at *14.
Of course, Kuenzel was far from idle; he was actively
litigating in federal court at the time of the State’s
disclosure. Nevertheless, the Opinion holds that “the
doctrine of equitable tolling does not permit a Rule 32
petitioner to belatedly reconsider his or her choice not to
timely file a Rule 32 petition only after he or she is
denied relief in another forum.” Id.
It is “the duty of this court to insure that justice is
served and fundamental rights are not indiscriminately
denied.” Ex parte Duncan, 1984 Ala. LEXIS 5048, *7 (Ala.
1984). “Consistent with society’s ‘overriding concern with
the justice of the finding of guilt’, the courts, as well
as the prosecution, must be vigilant to correct a mistake.”
Ex parte Ward, 89 So. 3d 720, 728 (Ala. 2011) (internal
citations omitted). See generally Amicus at 18-26.
Because the doctrine of equitable tolling seeks as its
end to do justice, and the circumstances here truly are
extraordinary, formulaic denial of relief to Kuenzel
52
because he litigated in federal court and did not file a
placeholder petition is needlessly rigid for several
reasons.
1. The lower court’s criticism of Kuenzel’s counsel
appears to be an application of “placeholder petition” law
developed by the federal courts interpreting AEDPA.
Regardless of the wisdom and value -- or lack thereof -- of
federal habeas placeholder rules, nothing in Alabama case
law requires the state courts to deny review of a
meritorious new evidence claim in post-conviction simply
because it was first presented in ongoing federal
proceedings, after state proceedings were procedurally
dismissed. To the contrary, analogous civil law of Alabama
would preclude the state court’s consideration of a claim
under active litigation in the federal courts. See Ala.
Code § 6-5-440; Ex Parte Canal Ins. Co., 534 So. 2d 582
(Ala. 1988); Ex parte Boys & Girls Clubs of Southern
Alabama, Inc., No. 1130051, 2014 WL 3012523, *19 (Ala. July
3, 2014).
2. Far from ignoring settled precedent with clear
direction, many legal principles impacting Kuenzel’s
ability to access the courts have literally developed in
53
tandem with Kuenzel’s journey through post-conviction.
See, e.g., Siebert v. State, 78 So. 2d 842 (Ct. Cr. App.
1999); Siebert v. Campbell, 334 F.3d 1018 (11th Cir. 2003);
Hurth v. Mitchem, 400 F.3d 857 (11th Cir. 2005); Pace v.
DeGugliemo, 544 U.S. 408 (2005); Siebert v. Allen, 455 F.3d
1269 (11th Cir. 2006); Siebert v. Allen, 506 F.3d 1047
(11th Cir. 2007); Allen v. Siebert, 552 U.S. 3 (2007).
3. The State alone possessed the power to disclose
evidence it possessed exclusively. Under such
circumstance, equity does not urge empowering the State to
determine when, tactically, it should release illegally
suppressed materials. Simply stated, where the State
actively withholds evidence that is otherwise unavailable,
it should not receive any strategic litigation advantage by
and through the timing of its release.
4. In contrast to the government’s delay, Kuenzel
sought the most expeditious routes to resolving this case
throughout post-conviction. Kuenzel, following federal
requirements, attempted to have his constitutional claims
heard in federal court after he was prevented from
presenting his claims in state court. There is simply no
rule that when a successor Rule 32 petition becomes
54
procedurally available -- as occurs where there is newly
discovered evidence that has been withheld for years
without the petitioner knowing of its existence -- a
federal court must defer to state adjudicatory processes.
Here, the federal court was in the process of deciding,
under the narrow confines of its power to review state
convictions, whether the new evidence met the strictures of
federal equitable tolling. Kuenzel ultimately was
unsuccessful, but his efforts to overcome a procedural
default should not per se preclude equitable tolling,
especially where Kuenzel would otherwise be awarded relief
on his incontestably meritorious constitutional claims.
5. It was unavoidable that Kuenzel would face a
procedural default argument raised by the State in some
form. If Kuenzel had filed this same successive Rule 32
petition in 2010, the State would argue that his Brady
claims are not “new”; rather, the State would contend -- as
it has done in many other cases -- that Kuenzel’s claims
are barred as merely an extension of his prior, now-
procedurally defaulted Brady claims contained in the
initial Rule 32 petition. The State would argue -- as it
has done in many other cases -- that all claims which are
55
an extension of claims properly subject to a procedural
default also are due to be summarily dismissed.
In initial Rule 32 proceedings, the state courts
ultimately foreclosed Kuenzel’s ability to obtain merits
review of his constitutional claims. In federal court,
Kuenzel still had the opportunity to obtain relief from
conviction on the basis of his substantive constitutional
claims. Returning to state court, as he does now, offers
relief only in the extremely limited universe available for
successive post-conviction petitions.
The point is, Kuenzel did not delay action when he
learned -- from a lay witness -- of the existence of
unproduced grand jury transcripts, and later, of withheld
police notes. But he was forced to gamble between the
federal courts and the state courts. And these choices
were forced upon Kuenzel because of the State’s illegal
conduct. Equity should not condone or further such
behavior where a litigant has otherwise acted diligently.
6. The Court of Appeals’ equitable tolling analysis of
the factual innocence claim assigned zero weight to the
State’s tactical suppression of material evidence, in
circumstances where the government’s case rests upon the
56
thinnest of reeds: self-serving, inconsistent, and
inherently suspicious testimony of an 18-year-old admitted
accomplice testifying in return for a reduced sentence that
avoids the death penalty. See Reed v. State, 407 So. 2d
153, 158.
Nor did the court assign any weight to the police
department’s “remarkably uncritical” investigation of the
lowest-hanging fruit -- including David Pope -- that might
have revealed the true identity of Venn’s companion. See
Kyles v. Whitley, 514 U.S. 419, 445 (1995). As in Kyles:
Damage to the prosecution's case would not have
been confined to evidence of the eyewitnesses, for
Beanie's various statements would have raised
opportunities to attack not only the probative
value of crucial physical evidence and the
circumstances in which it was found, but the
thoroughness and even the good faith of the
investigation, as well. By the State's own
admission, Beanie was essential to its
investigation and, indeed, “made the case” against
Kyles. Contrary to what one might hope for from
such a source, however, Beanie's statements to the
police were replete with inconsistencies and would
have allowed the jury to infer that Beanie was
anxious to see Kyles arrested for Dye's murder.
Their disclosure would have revealed a remarkably
uncritical attitude on the part of the police. If
the defense had called Beanie as an adverse
witness, he could not have said anything of any
significance without being trapped by his
inconsistencies.
57
Id. Here, the police conducted no investigation of Pope or
any other possible suspects, despite not a single witness
at the convenience store identifying Kuenzel as Venn’s
companion.11
Where constitutional rights going to a conviction’s
fairness are violated, Kuenzel maintains that core
principles of equity and justice must intervene to permit
at least one re-examination of the underlying facts.
The courts of Alabama always have remained cognizant of
the need to insure a fair trial process, that the defendant
is afforded due process of law, and that a conviction does
not offend principles of justice, commenting that a
prosecutor:
is the representative not of an ordinary party
to a controversy, but of a sovereignty whose
obligation to govern impartially is as
compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal
11 See also Banks v. State, 845 So. 2d 9, 26-27 (Ct. Cr. App.
2002) (“A defendant can disprove his guilt by proving the
guilt of some other person”, and whether evidence is
“merely cumulative or impeaching” turns on whether the
evidence “seek[s] to discredit the veracity of any
witnesses” or whether it “serve[s] to controvert, that is,
disputed the State’s witnesses’ findings and opinions, not
their credibility”) (quoting Houston v. State, 208 Ala.
660, 95 So. 145, 147-48 (Ala. 1923) (citing Brown v. State,
120 Ala. 342, 25 South. 182 (1899), and McDonald v. State,
165 Ala. 85, 51 South. 629 (Ala. 1910))).
58
prosecution is not that it shall win a case,
but that justice shall be done. As such, he
is in a peculiar and very definite sense the
servant of the law, the twofold aim of which
is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness and
vigor -- indeed, he should do so. But, while
he may strike hard blows, he is not at liberty
to strike foul ones. It is as much his duty
to refrain from improper methods calculated to
produce a wrongful conviction as it is to use
every legitimate means to bring about a just
one.
Ex parte Duncan, No. 83-75, 1984 Ala. LEXIS 5048, *5-6
(Ala. 1984) (quoting Berger v. U.S., 295 U.S. 78, 88 (1935)
(defining the obligations in a state prosecution of the
State’s attorney)).
Kuenzel maintains that the unprecedented circumstances
of this case justify and demand the court’s discretionary
exercise of its sparingly-used equitable powers.
CONCLUSION
A solution is urgently needed to address this unique
situation. There is nothing circumscribing this Court’s
power to do justice by tolling the statute within the
narrow confines of this case. Alabama law comfortably
accords a petitioner, like Kuenzel, one opportunity to
persuade a post-conviction court that he is, in fact, a
wrongfully and unfairly convicted inmate on death row.
59
Because Kuenzel’s constitutional claims were summarily
disposed of on a procedural default, this Petition is his
last opportunity to correct this grave error.
Finally, even if this Court is not yet persuaded of
Kuenzel’s factual innocence, dismissal is not the
appropriate remedy at this stage. Ward and other binding
jurisprudence advise that Kuenzel need not “establish that
he was innocent of the murder”, but rather that he is
entitled to a hearing at which the question is whether, in
light of the newly discovered evidence, “the result would
probably have been different.” Ex parte Ward, 89 So. 3d at
727. Whether the evidence is sufficiently strong to “tend
to destroy or obliterate the effect of the evidence upon
which the verdict rests” is a question most appropriately
resolved after an evidentiary hearing. Id. A pre-eminent
issue at such hearing would be Venn’s and Harris’s
responses in light of the newly available information.
For all of the foregoing reasons, Kuenzel’s conviction
violates Alabama law because the State failed in its duty
to corroborate the testimony of an admitted accomplice, and
because evidence unavailable at trial demonstrates that
Kuenzel is factually innocent.
60
Kuenzel respectfully submits that certiorari should be
taken, and the Petition granted.
Dated: November 9, 2015
Respectfully submitted,
/s/ Lucas C. Montgomery
Lucas C. Montgomery
Montgomery Ponder LLC
2421 Second Avenue North
Unit One
Birmingham, AL 35203
Tel: (205) 419-7931
G. Douglas Jones
Jones & Hawley, P.C.
2001 Park Place North, Suite 830
Birmingham, AL 35203
Tel: (205) 490-2290
David A. Kochman
(pro hac vice)
Henry Schein, Inc.
135 Duryea Road
Melville, NY 11747
Tel: (631) 845-2954
Jeffrey E. Glen
(pro hac vice)
ANDERSON KILL P.C.
1251 Avenue of the Americas
New York, NY 10020
Tel: (212) 278-1000
Counsel for Petitioner-Appellant
William Ernest Kuenzel
CERTIFICATE OF SERVICE
I hereby certify that on November 9, 2015, I served a
copy of the attached motion by first-class mail, postage
prepaid to:
J. Clayton Crenshaw, Esq.
Office of the Attorney General
500 Dexter Avenue
Montgomery, AL 36130-0152
I also have caused the original and 12 copies to be filed
with the Clerk of the Supreme Court, and one copy to be
filed with the clerk of the Court of Criminal Appeals.
/s/ Lucas C. Montgomery______
Lucas C. Montgomery
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Page 1
STATE OF ALABAMA COURT OF CRIMINAL APPEALS ------------------------X
IN THE MATTER OF:
WILLIAM ERNEST KUENZEL,
APPELLANT, Docket No.: CR-13-0899 Vs.
STATE OF ALABAMA,
APPELLEE.
------------------------X
April 7, 2015
HELD AT: STATE OF ALABAMA COURT OF CRIMINAL APPEALS 300 Dexter Avenue Montgomery, Alabama 36104
BEFORE: HONORABLE SAMUEL WELCH, Presiding Judge
J. ELIZABETH KELLUM LILES C. BURKE J. MICHAEL JOINER Judges
APPEARANCES: JEFFREY E. GLEN, ESQ. RENE F. HERTZOG, ESQ. G. DOUGLAS JONES, ESQ. DAVID A. KOCHMAN, ESQ. LUKE MONTGOMERY, ESQ. Attorneys for the Appellant
JAMES CLAYTON CRENSHAW, ESQ. LAUREN SIMPSON, ESQ. Attorneys for the Appellee
TRANSCRIBER: LOUISA RETTLER
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Page 2
1 SENIOR JUDGE SAMUEL WELCH: I was going to
2 introduce the Court before we got started. Presiding
3 Judge Mary Windom has recused herself from this case.
4 That's why this chair to my left is empty. I'm the
5 Senior Judge on accordance. It's my duty to present
6 in her absence. I'd like to introduce the Court. To
7 my left is Judge Beth Kellum from Tuscaloosa County,
8 received her JD from the University of Alabama, has
9 served as Assistant Attorney General, Senior Staff
10 Attorney for the Alabama Court of Criminal Appeals.
11 Has served in private practice specializing in
12 appellate work and later served as a Senior Staff
13 Attorney on the Alabama Supreme Court. She's served
14 on this Court since 2009.
15 To my right is Judge Liles Burke from
16 Marshall County, received his Juris Doctorate from
17 the University of Alabama, practice law in Marshall
18 County and served as Municipal Judge for the City of
19 Arab. In 2006 he was appointed to serve as District
20 Judge in Marshall County and during his service he
21 was also in the District Judges Association and the
22 Juvenile Judges Association. He's served on this
23 Court since 2011.
24 To my far left is Judge Michael Joiner from
25 Shelby County. He graduated from Stanford and
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Page 3
1 received his Juris Doctorate from Cumberland Law
2 School and was an editor of the Cumberland Law
3 Review. He practiced law in Shelby County until his
4 election as Circuit Judge of Shelby County in 1992
5 and served as presiding Judge from 2005 until his
6 appointment on this Court. And he's served on this
7 Court since 2009.
8 I'm Judge Sam Welch from Monroe County. I
9 received my law degree from the University of Alabama
10 and was an editor of the Law and Psychology Review
11 there. I practiced law and served as a Municipal
12 Judge for the City of Monroeville, served as District
13 Judge in Monroe County and then served as a presiding
14 Circuit Judge in the 35th Circuit which is Monroe and
15 Conecuh County from 1989 through 2007. I've served
16 on this Court since that time. And we appreciate
17 your appearance here and are looking forward to
18 hearing your arguments. I'll ask the Clerk to call
19 the first case.
20 THE CLERK: CR-13-0899, William Ernest
21 Kuenzel versus the State of Alabama. An appeal from
22 the Talladega Circuit Court. For the Appellant,
23 David Kochman, Doug Jones, Jeffrey Glen, Renee
24 Hertzog and Luke Montgomery. For the Appellee, Clay
25 Crenshaw and Lauren Simpson. CR-13-0899.
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Page 4
1 DAVID KOCHMAN: May I approach, Your Honor?
2 SENIOR JUDGE WELCH: Certainly.
3 MR. KOCHMAN: Good morning. And may it
4 please this Honorable Court. My goal before you today is
5 twofold. First, I am to convince you that my client did not
6 not receive a fair trial. And that in light of all the
7 evidence known today his conviction is manifestly unjust. And
8 second I want to provide comfort to this Court that the
9 narrow jurisdictional solution that we propose, is in fact
10 the best outcome to satisfy all parties expressed
11 interest for justice in this case, while at the same
12 time avoiding tagalong petitioners.
13 Implications of justice lie at the center of this
14 case and the errors that occurred must be corrected. In a
15 situation like here where the prosecution played fast and
16 loose with the evidence, Courts must take special care to see
17 that justice is done. I'd like to start off by explaining
18 some of the reasons why this case is unique and why the
19 present set of facts will be difficult to replicate by
20 anyone else.
21 This was a weak case built on accomplice
22 testimony.
23 The sole corroboration was denied before
24 the Grand Jury. And the same prosecutor, who
25 elicited that testimony before the Grand Jury, elicited
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1 the testimony from the same witness at trial.
2 Only the prosecutor knew of that Grand Jury
3 testimony. And that Grand Jury testimony was not produced,
4 was not produced by the State initially, in fact it was
5 disclosed in the first instance to a lay witness.
6 That testimony directly contradicts the prior Grand
7 Jury testimony. It is not simply less certain. And
8 that is a critical point and a point of distinction
9 between our case and what the State presents. In
10 this witness's trial testimony she indicates that she
11 could clearly identify Kuenzel with Venn. This is a
12 disinterested witness and in fact was the only
13 independent evidence supporting Venn's statement that
14 Kuenzel with Venn. Yet before the Grand Jury she
15 states that I couldn't get any description, I
16 couldn't see a face, I couldn't tell you what clothes
17 they have on. Her professed belief, that she saw
18 Kuenzel and Venn, is not an identification. There is
19 simply no basis for that and absent April Harris's
20 trial testimony there is no way that the prosecution
21 would have been able to obtain a conviction. What
22 the prosecutor should have done in this instance
23 here, as soon as he elicited that testimony at trial,
24 was either (A) withdraw the witness because he knew
25 of the prior statements or (B) disclose the Grand Jury
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Page 6
1 testimony and ask for a continuance. And yet neither
2 of those happened. In fact the prosecutor let the
3 case come up before this very Court and let this
4 Court issue its decision, which I think is critical
5 to look at. This Court in examining the 12-21-222
6 claim stated that there were multiple witnesses who
7 saw Harvey Venn at the store, spoke with Harvey Venn,
8 saw his car there and—
9 SENIOR JUDGE WELCH: All right. May I ask
10 you a question? In view of the fact that this claim
11 was litigated on direct appeals so 32.2(a)5 applies.
12 It was also litigated in the First Rule 32 petition,
13 so 32.2(b) applies. And that it was filed in an
14 untimely manner, outside the statute of limitations
15 set out in the Rule, which at the time of his
16 conviction was two years, but it's now been shortened
17 to one. Is there any authority that you found that
18 states that the failure to properly corroborate an
19 accomplice's testimony is a jurisdictional issue to
20 avoid a conclusionary bar as it exists in those
21 provisions of the Rule?
22 MR. KOCHMAN: Your Honor, this is a unique
23 situation, where we are not speaking about the
24 sufficiency of the corroboration which was what was
25 at issue in those prior cases--in our prior
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1 petitions. What we're talking about here is the
2 existence of corroboration. Our argument to this
3 Court is that there is no corroboration absent April
4 Harris.
5 SENIOR JUDGE WELCH: I saw it at trial that
6 she recognized him. He wasn't in the store with
7 Venn, if I'm pronouncing his name correctly. So
8 that's corroboration. Now what you're showing is
9 classic impeachment. And under 32.1(e)3 it may not
10 be--that newly discovered evidence may not merely be
11 impeachment evidence. So why is this a
12 jurisdictional claim and does this Court have the
13 authority to ignore the plain mandate of Rule 32 even
14 if we agreed with your -- that in our hearts that you
15 presented a strong case for a retrial, how does this
16 Court follow the law and give you a decision?
17 MR. KOCHMAN: Certainly, Your Honor. And
18 it's an excellent question that really strikes to the
19 heart of what we're talking about here. The first
20 point I'd like to address is that April Harris's
21 Grand Jury testimony is not simply impeachment. As
22 this Court and the Supreme Court has recognized in
23 Ferris v. State and Banks v. State, impeachment can
24 take multiple forms. Impeachment evidence goes to
25 the credibility of the witness whereas testimony,
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1 prior testimony, that controverts the substance and
2 findings and opinions.
3 SENIOR JUDGE WELCH: Back when I was in law
4 school I thought my professor told me that a prior
5 inconsistent statement was classic impeachment
6 evidence.
7 MR. KOCHMAN: Your Honor, I'm simply going
8 off the Court's jurisprudence here which delineates
9 between attacks on credibility and attacks on the
10 findings and opinions here. This is not simply
11 impeaching her. Her statement before the trial is
12 that she could clearly identify both witnesses. And
13 in her earlier Grand Jury testimony she says I didn't
14 get any description. In fact a fair reading of the
15 Grand Jury testimony indicates that she was
16 encouraged to try to provide an identification.
17 Ostensibly for the reason that the prosecutor knew he
18 needed some corroboration. I think it's an important
19 point to note that there were eight witnesses or of
20 all the witnesses that were at the store that evening
21 that spoke with Venn, saw Venn, not a--and they saw
22 him there with another white male. Not a single one
23 identified Kuenzel as that person. And yet the woman
24 driving by in a car provides this identification. The
25 driver of the car doesn't even provide the identification.
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1 Your Honor, so our position is that
2 this is not simply impeachment. This actually goes
3 to provide substantive evidence and in fact nullifies
4 April Harris's testimony. Now had April Harris--
5 SENIOR JUDGE WELCH: What are those cases if
6 you don't mind?
7 MR. KOCHMAN: Certainly, Your Honor. And
8 they're cited in our brief. Ferris v. State and
9 Banks v. State.
10 SENIOR JUDGE WELCH: Banks, okay.
11 MR. KOCHMAN: Your Honor, just to clarify
12 this, we are speaking here about the existence of
13 corroboration and that's what makes this case so
14 unique. The prosecutor in this case decided to
15 present a case based purely on accomplice testimony.
16 There is no other evidence that would satisfy the
17 corroboration as delineated by this Court and the
18 Supreme Court. And so it's for that reason there
19 that it makes this so unique. If there was
20 corroboration in some other form we would be speaking
21 about sufficiency, and it would relate back, but this is
22 about the existence. Now as to this Court's
23 authority to consider this, there is nothing that I
24 have seen in the State's brief or that we have found
25 which circumscribes this Court's power to permit
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1 evidence and for it to be heard in such a situation
2 like this. Where the State exclusively possessed
3 this evidence. It was unknown to anyone else. The
4 State turns it over in active proceedings. And then
5 it's introduced promptly by us into those proceedings
6 and then promptly thereafter, after those proceedings
7 are done, we filed our petition here. You know, we
8 were in active Federal Court proceedings. We had no
9 reason to believe that there wouldn't be additional
10 evidence that might come out as opposed to presenting
11 evidence in a piecemeal fashion, we waited until the
12 conclusion of that hearing.
13 JUDGE JOINER: Counsel, is there any
14 authority or can you cite any authority that gives an
15 exception to Rule 32.2(c) which says that you have
16 six months from the discovery of that newly discovered
17 evidence. Now you claim that the Federal litigation,
18 the proceedings there, give you an exception. But is
19 there any authority for that in Alabama law that you
20 can cite?
21 MR. KOCHMAN: Certainly. Well Alabama law
22 does recognize that the Court has the inherent power
23 to equitably toll the statute of limitations in--
24 JUDGE JOINER: Did you plead equitable
25 tolling--specifically plead equitable tolling in your
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1 petition? It has to be pled and proved. And from my
2 review of it I don't even see it pled in the
3 petition.
4 MR. KOCHMAN: Your Honor, while I believe
5 we plead all of the underlying facts to that, whether
6 we actually intoned the words equitable tolling, you
7 know, if that is the defect that underlies the
8 Court's inability to reach that, we would ask
9 respectfully to have the ability to amend to put that
10 in. But the facts that are contained within our
11 petition all set out exactly the basis for equitable
12 tolling. If that's what the Court would find to be
13 appropriate. And there certainly is basis in a
14 number of cases. Now one of most recent ones would
15 be Jenkins v. State which is cited by the State. There
16 was a case very recently--and I will on rebuttal come
17 up and provide you with the name of that. Beavers v.
18 State also provides a basis for equitable tolling.
19 But let's delineate here, we're talking
20 about the six month presentation of new evidence timely
21 filing rule. We're not talking about the now one year timely
22 filing rule, the prior two year. That one is mandatory and
23 jurisdictional. And in fact it is that rule which is why we
24 didn't get relief on our initial petition. But for that
25 initial procedural bar, we maintain that the constitutional
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1 errors here would have provided a basis for relief
2 initially.
3 JUDGE JOINER: Well isn't the--
4 SENIOR JUDGE WELCH: I don't agree that it's
5 jurisdictional. For example a jurisdictional claim
6 can be raised at any time. And I just--do you have
7 any evidence at all that a prior inconsistent
8 statement constitutes a jurisdictional claim? You're
9 characterizing it as an absence of evidence but
10 basically she said one thing at one time and she said
11 another thing at another time. That is prior
12 inconsistent statement.
13 MR. KOCHMAN: Your Honor, in this situation
14 where April Harris's Grand Jury testimony had been
15 provided here, we would not be able to make this
16 claim. And I will concede that before the Court.
17 This is--
18 SENIOR JUDGE WELCH: [Interposing] That's
19 the Brady matter right?
20 MR. KOCHMAN: Pardon?
21 SENIOR JUDGE WELCH: That's in Brady--
22 MR. KOCHMAN: No, not as a Brady matter but
23 as a corroboration matter because at that point there
24 it would go to the sufficiency of the evidence.
25 Because we would have April Harris testifying and
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1 saying I know I made that statement, but I'm still
2 maintaining here that I believe that I saw them.
3 That would be a sufficiency argument. Here we're
4 talking about the existence. And so for this Court
5 to accept April Harris's trial testimony that was not
6 confronted with her earlier statement where she says
7 the exact opposite thing, goes to the existence we
8 maintain.
9 SENIOR JUDGE WELCH: How is that any
10 different than a witness saying it was a red light
11 when the accident occurred and then later on at trial
12 saying it was a green light when the accident
13 occurred? How is that any different?
14 MR. KOCHMAN: The difference is that the
15 State knew. And only the State knew about that prior
16 statement.
17 SENIOR JUDGE WELCH: That's why I mentioned
18 Brady.
19 MR. KOCHMAN: Well that's right. And you
20 know, Your Honor, although we are now unable to
21 receive relief on the Brady claims, the ripple
22 effects, the consequences of that failure to provide
23 this evidence is what we challenge. And this is one of those
24 consequences. This is a rare case, Your Honor. I'm
25 not arguing here that there is vast jurisprudence
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1 prudence which supports what we're talking about, but
2 indeed that's the reason that this Court possesses
3 the inherent power to do justice in situations just
4 like this, where the State acted in a way that was
5 wholly improper. And we need to find a way to
6 capture Kuenzel's case so that justice can be done.
7 This is a situation here where the new evidence, and
8 the evidence that was withheld really go to the
9 core of this case. You know the State is certainly
10 allowed to present a weak evidence case if that's
11 what the prosecutor chooses to do. But the State is
12 not allowed to strike hard blows as this Court had
13 mentioned in Ward and cited from--
14 SENIOR JUDGE WELCH: They can strike hard
15 blows, just not allowed to strike unfair ones.
16 MR. KOCHMAN: Thank you, Judge. That's
17 exactly right and better said. The statements that
18 were withheld here in addition to Harris's Grand Jury
19 testimony, the five pages of police notes taken by
20 Officer Dusty Zook, are incredible. And there's
21 absolutely no basis for those to have been withheld,
22 nor for the prosecutor to have said in the April 2nd
23 hearing, nor at trial, that we have provided them with
24 every statement. And in fact those issues were
25 exacerbated later on in two ways. When Dusty Zook
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1 was questioned, trial counsel asked her "are you aware
2 of any other statements that might exist or anything
3 else that might exculpate our client"? And the
4 prosecutor Robert Rumsey objected at that point
5 saying we've given them everything. And the
6 objection was sustained. And in fact this Court
7 noted in its 1990 opinion regarding April Harris that
8 the prosecutor improperly argued that April Harris
9 has been a witness in this case, since day one, that
10 she was on the witness list. Although the Court
11 ultimately found that that statement itself was not
12 so egregious as to warrant a reversal, it is
13 indicative of what the prosecutor was doing in this
14 case. Venn's statements contained detailed
15 descriptions of David Pope. Multiple times, Venn
16 told the police "I was with David Pope at the store."
17 These are new elements that were not contained in the
18 summary of Venn's statement that was provided by the
19 police--summary of Venn's statement, just one. We
20 didn't know that there were multiple, wherein he describes
21 the interaction that Venn had with Pope. He says in
22 there, in those statements, "I came to the store alone,"
23 which is consistent with Venn's 13 year old girlfriend who
24 says "I saw him earlier that night and he was alone." It
25 describes that I knew David Pope from school in Millersville.
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1 It describes the interaction they had in that car.
2 And yet there's not a shred of evidence, anything about
3 David Pope. We didn't get this information until 2010.
4 The bruising that was observed by Dusty
5 Zook is incredible. We have Venn exhibiting damage
6 to his left eye and on his left arm. And there's
7 evidence in the record in the forensic--of the
8 autopsy statements of the victim having bruising or
9 petechia on her right hand. This also--the
10 specificity with which Venn is able to describe what
11 happened in the store. There's a lot, and I think
12 it's clear, there's a lot that Venn doesn't remember.
13 We were driving around for 90 minutes and he can't
14 provide any detail. Yet I would urge the Court to
15 look at in the trial testimony page 181 and Venn's
16 December 9th testimony which is 135 in the record
17 where he describes the specific interaction that
18 occurred between the assailant and the convenience
19 store clerk. It wasn't a simple interaction. The
20 clerk actually said, according to Venn, "I'm not going
21 to give you any of the money in the register. You
22 better go ahead and squeeze that trigger." Well, in
23 light of the new evidence it provides an explanation
24 for one of the most damming pieces of evidence, and
25 one that no one can explain, which is that Venn has
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1 the victim's blood splattered on his pants. No one
2 can explain that. Venn says he never went in the
3 store. This new piece of evidence provides an
4 ability to make an argument that was otherwise not
5 present at the time. Venn's--
6 SENIOR JUDGE WELCH: I think we agree that
7 you presented a powerful case. Where does this Court
8 have the authority to ignore the plain mandate of the
9 preclusionary provisions of Rule 32? You know in
10 Marks v. State, a 2008 case, this Court found that--
11 on direct appeal, a claim that there was a lack of
12 corroboration, had to be specifically part of a
13 motion for judgment of acquittal. You had to
14 actually argue that through the Trial Court. And if
15 you did not do that, you waived it. Now we could not
16 have made that decision if the failure to corroborate
17 accomplice testimony presented a jurisdictional
18 question. And we were forced to do that in Ex Parte
19 Weeks, a previous opinion of the Alabama Supreme
20 Court, which found that in order to raise a lack of
21 corroboration you must specifically argue that to the
22 Trail Court in a motion--either in a motion for
23 judgment of acquittal or in your motion for a new
24 trial. Now you see while those aren't Rule 32 cases
25 this Court is bound to recognize and deal with
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1 jurisdictional issues on direct appeal. We
2 frequently remand cases for resentencing or if
3 there's a double jeopardy violation in the like. So
4 you see that's why you need to--I would say that you
5 need to show us how we can ignore the plain mandate
6 of Rule 32.2 and the preclusionary grounds set out in
7 there in order to do what you want us to do. And is
8 there a case that says we can just ignore that?
9 MR. KOCHMAN: Let me address Your Honor's
10 question in two ways. First I think Your Honor
11 mentioned double jeopardy cases. And I think that
12 that is a perfect universe of case law to look at.
13 As the Supreme Court recognized in Herd v. State,
14 double jeopardy claims are not per se
15 jurisdictional. In fact there are non-jurisdictional
16 double jeopardy claims and jurisdictional ones. If
17 in the first instance, when someone is indicted, they
18 know of a prior conviction that would serve as the
19 basis for a double jeopardy claim, it must be raised
20 otherwise it is a non-jurisdictional claim. However,
21 the double jeopardy claim when you are indicted based
22 on two statutes--subsections of the statute the
23 double jeopardy itself doesn't attach until such time
24 as the conviction is entered. And it's that point
25 where it is double jeopardy to have you convicted of
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1 both. The same applies here. Until we knew of the
2 Grand Jury testimony, which we maintain, our position
3 is that that defeats the existence of corroboration.
4 We did not have a jurisdictional claim. It existed
5 but we did not know of it until that time.
6 SENIOR JUDGE WELCH: But the first case that
7 would establish that principle would be this case?
8 MR. KOCHMAN: Your Honor, this case is
9 unique for many reasons and we are certainly before
10 the Court, you know, without--we believe we have
11 strong case law to support our position here. But we
12 are appealing to this Court's equity. This is an
13 equitable case. And as I said at the outset here,
14 this Court needs to believe that this man didn't get
15 a fair trial for it to do what we're asking this Court to do.
16 We're not asking for broad rules to be
17 set and that's why the limiting principles we
18 advocate are highly important.
19 This evidence-- this isn't evidence that we
20 found or that someone else came forward with. This is
21 evidence that resided exclusively within the corridors
22 of the State, the prosecutor and the capital litigation
23 division and yet it was not turned over. There is
24 not a single statement in fact that this evidence
25 would have been turned over but for the fact that a
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1 witness that we've kept in touch with happened to
2 call and tell us about it. This situation is not
3 just and that is unique really to this case.
4 On top of that, we then came forward with
5 that evidence promptly and presented it in the context
6 of active proceedings and then promptly initiated this
7 litigation after. There is no case that I am aware
8 of which precludes the Court from tolling whatever
9 statute of limitations exist with respect to the six
10 month one. The one year one is not at issue, the six
11 month one in a situation like this. With respect to
12 the April Harris testimony which serves as the basis
13 as that you can go even further to limit it where it
14 is the prosecutor who elicits the prior inconsistent
15 statement, elicits the subsequent statement which is
16 contrary to it. There are a number of ways to write
17 a very narrow opinion that only applies to this case
18 and at the end of the day that's what we're seeking.
19 Mr. Kuenzel did not get a fair trial. What happened
20 here is horrific. And we need to find a way to
21 correct that. We have offered a number of different
22 ways that this Court can do it.
23 I'd like to go back just to, you know, happy
24 to address anything the Court would like to address
25 here, but I think it's important to focus a little bit
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1 on Venn and what we have here. You know this a man
2 who independent of everything else, who is 18 years
3 old. He's seen at the store by multiple witnesses.
4 At first he says I was only at the store until 10:00,
5 and from all of these witnesses it's clear that he was
6 there. He says that he was alone initially and that
7 my client was at home asleep. And that evidence is,
8 in fact, corroborated by a disinterested witness from
9 Kuenzel, by his girlfriend who testified before the
10 Grand Jury and that was not provided as well. So the
11 girlfriend says he was alone before he went there,
12 Venn says he was alone and that my client was at home
13 asleep. We now know he possessed a 16 gauge shotgun.
14 Now Kuenzel's trial attorney has put in an affidavit
15 in this case explaining the Strickland violation
16 essentially, his ineffective assistance. And he
17 explains why he was lulled - - into complacency here.
18 So whoever is at fault for not obtaining that
19 shotgun, the fact remains it's a 16 gauge shotgun
20 that he possessed.
21 SENIOR JUDGE WELCH: Are you saying there
22 were two 16 gauge shotguns in the car?
23 MR. KOCHMAN: Our position, Your Honor, is
24 that Kuenzel's 16 gauge shotgun had been returned
25 prior to the murder. And in fact there's only one
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1 witness who says that it wasn't returned before the
2 murder and that's Harvey Venn. And notably, Harvey
3 Venn's first statement to the police on November 15th
4 when asked what about "did Kuenzel have a gun?" "did he
5 return the gun" and he says "I don't know--I don't know
6 when he returned it, I wasn't with him."
7 SENIOR JUDGE WELCH: - - Were the
8 bullets traceable?
9 MR. KOCHMAN: So, Your Honor, because it
10 was a shotgun there was no way--and it was a shell,
11 it was simply pellets. So there was no way to
12 identify--
13 SENIOR JUDGE WELCH: [Interposing] You're
14 talking about the projectile, the shells themselves -
15 - markings that come from the extraction mechanism
16 and also from the firing pin. So a tool mark
17 examiner, you know, we call it ballistics but
18 ballistics also refers to the path of bullet, could
19 examine both marks and determine if a shell came from
20 a given shotgun. And in some cases sometimes they
21 can't.
22 MR. KOCHMAN: Certainly, Your Honor, and in
23 this case there was no physical evidence connecting
24 anything to the crime. All that was found was a
25 shotgun shell in a trash basin outside of Venn and
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1 Kuenzel's shared residence. And that shell was
2 connected to the gun that Kuenzel had borrowed from
3 his step-father.
4 SENIOR JUDGE WELCH: I read in the State's
5 brief that there was an examination of the shell and
6 that it was more than just consistent with a 16 gauge
7 shotgun. That it was--had been matched to the
8 shotgun and along with the wadding.
9 MR. KOCHMAN: Well no--
10 SENIOR JUDGE WELCH: It was the same kind of
11 shell.
12 MR. KOCHMAN: That's exactly right, Your
13 Honor. And that is an undisputed fact that the shell
14 found outside of Venn and Kuenzel's residence was
15 connected to the gun that Kuenzel had borrowed. But
16 that standing alone does not satisfy corroboration,
17 in fact it's not evidence of anything unless you look
18 to Venn's testimony for direction. Venn says, well
19 Kuenzel disposed of the shell in the trash basin
20 outside the house. It's important to note this
21 wasn't found in some odd place where Venn said it was
22 buried somewhere. This was outside of their shared
23 residence. There is no way to indicate that that
24 shell was used in fact in this. There's a number of
25 pieces of evidence, and you know on rebuttal I'd be
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1 happy to address anything. Certainly the most
2 troubling evidence which we flatly concede which is
3 the fact that Kuenzel's mom bribed a witness which was
4 horrible. The important note here is that these
5 aren't inconsistent with innocence, this is
6 consistent simply with hapless people that were
7 unsophisticated who after conviction all of these
8 things transpired. And that's a really important
9 point in the narrative here which is there was a
10 cavalcade of injustices that just kept getting worse.
11 This is something that needs to be unwound from the
12 beginning. If there are no further questions I'll
13 reserve the balance of my time.
14 MR. CLAY CRENSHAW: May I please the Court.
15 My name is Clay Crenshaw and I represent the State of
16 Alabama. In this case--before I get to the
17 corroboration issue I just want to address something
18 briefly about some of the misperceptions stated here
19 today and that are also contained in Kuenzel's brief.
20 The District Court in the Eleventh Circuit
21 extensively looked at the factual innocence issue
22 that Kuenzel has presented. And those Courts stated
23 that none of this evidence implicates anything about
24 innocence. The District Court said that none of this
25 evidence positively and affirmatively points to
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1 anything regarding the innocence of the petitioner
2 and that it only relates to the credibility of Venn.
3 And then it said that the evidence that Kuenzel
4 presented along those lines with itself so flawed as
5 to not be effective at all. And that's at 880 F.
6 Supp. 2d 1224. Now the Eleventh Circuit, and it was
7 a very ideologically diverse three Judge panel that
8 heard this case, they held that Kuenzel failed to
9 make the needed demonstration of actual innocence.
10 Indeed they even minimized this evidence and said
11 that this does not strike us as an extraordinary
12 case.
13 Now on to the corroboration issue, we have a
14 time bar, procedural bar here and also two procedural
15 defaults. The time bar is implicated because this
16 Court issued its certificate of judgment in 1991.
17 This petition was filed 22 years later. Even if the
18 Grand Jury testimony of April Harris is considered,
19 that was produced in March of 2010. And a petition
20 should have been filed by August of 2010 but it was
21 not. So the petition is out of date by three years
22 and that's what the Circuit Court here held. We also
23 have--I'm sorry. The Circuit Court held that there
24 was a successive petition bar in place. And that was
25 because this exact claim was raised in the first Rule
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1 32 petition. The Circuit Court for authority cited
2 this Court's decision in Barber v. State. And in
3 that particular case there was also a claim that was
4 held to be procedurally barred in the first Rule 32
5 petition, it was also raised in the successive
6 petition and it was held to be barred. And then we
7 also have the direct appeal bar that was mentioned.
8 Now the Circuit Court found that the lack of
9 corroboration claim was not jurisdictional here. The
10 Circuit Court noted that there is no case that has
11 been cited by Kuenzel or that the Court could find
12 that holds that a lack of corroboration claim is a
13 case that implicates the jurisdiction of the Court or
14 it implicates Rule 32.1(b). Now the State cited
15 Patton v. State in ex parte Seymour which are cases
16 that even though they talk about defective
17 indictments, they relate to whether or not a claim in
18 and of itself is jurisdictional. And those cases
19 point out that jurisdiction is a Court's power to
20 decide a case or issue a decree. The subject matter
21 jurisdiction concerns a Court's power to decide
22 certain types of cases. And the in power of a Court
23 to decide a case comes from the Alabama constitution
24 and Alabama state statutes. Now here Kuenzel's claim
25 does relate to a statute and not to a provision of
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1 the Alabama constitution but the statute doesn't
2 relate to anything involving the jurisdiction of the
3 Court. As the Rule 32 Circuit Court held here,
4 corroboration of accomplice testimony is not a
5 constitutional requirement but it's only a statutory
6 requirement. And indeed the statute can be repealed.
7 In fact there's legislation that's been proposed for
8 the last five years to repeal this very statute but
9 it hasn't been repealed. And the Trial Court is not
10 divested of any kind of jurisdiction if this
11 statutory requirement isn't met. This is not a
12 jurisdictional issue as the Rule 32 Circuit Court
13 held because it does not affect the actual authority
14 of the Court to try a case or to issue any kind of
15 decree. So thus the rules of preclusion do apply in
16 this case. Now Kuenzel says that in his brief, and I
17 believe this was in his reply brief, that this Court
18 and the Alabama Supreme Court have held that cases
19 that raise a claim involving double jeopardy in a
20 sentence that exceeds the maximum allowed by law are
21 considered jurisdictional claims even though those
22 claims don't implicate anything about subject matter
23 jurisdiction. But as this Court has repeatedly held
24 and as the Alabama Supreme Court has repeatedly held,
25 a Court doesn't have jurisdiction to find somebody
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1 guilty of multiple offenses on the same set of facts.
2 And that's what double jeopardy is. A Court just
3 doesn't have the jurisdiction to accept that kind of
4 a verdict. And again on the unauthorized sentences
5 of this Court and the Alabama Supreme Court have
6 repeatedly held that a Judge doesn't have the
7 jurisdiction to sentence a defendant to a sentence
8 that exceeds the maximum allowed by law. So those
9 cases are - - to this particular situation. In our
10 brief we note that issues regarding corroboration of
11 accomplice testimony implicate the overall
12 sufficiency of the evidence. And this Court has very
13 consistently held that those type claims are not
14 jurisdictional. So because this claim isn't
15 jurisdictional it is subject to the Rule 32.2 rules
16 of preclusion. And it's time barred. It was raised
17 in a successive petition and that bar applies--and it
18 was also raised on direct appeal.
19 So now let's assume that the procedural bars
20 aren't in place and that the time bar isn't in place
21 and is there corroboration in this case. There are
22 six items here that have been--that I point out in my
23 brief that also the Federal Court looked at that do
24 indicate that there is sufficient corroboration. And
25 the first item has been mentioned by Judge Welch.
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1 That there was a match to the shotgun that Kuenzel
2 had possession of. And the shotgun shell was found
3 in a trash barrel outside of the house I believe a
4 couple of days after the crime occurred. And there
5 was a match of that shotgun shell to the shotgun that
6 Kuenzel borrowed from his father. And I cite to the
7 record there 147 4d.8 347 and 349. And also the
8 police recovered material from the victim's body in
9 the crime scene known as shotgun wadding that was the
10 same manufacturer as that particular shell. The
11 second item, Kuenzel has acknowledged the substantial
12 attempts of his attempts to fabricate an alibi. Now
13 Kuenzel was--I'm sorry, Venn was questioned several
14 days after the crime occurred. And a police
15 investigator came into their home, Kuenzel and Venn
16 lived together at the time, and he discovered Kuenzel
17 and Venn at a table and Kuenzel was writing in a
18 notebook. The police eventually seized this notebook
19 and found Kuenzel's notes documenting the false story
20 that Venn was telling the police at that time. And
21 of course Venn changed his story and started telling
22 the truth. But Venn testified that Kuenzel was the
23 one that had asked him what he told the
24 investigators. And that's why he was writing this in
25 the notebook. The jury also learned that Kuenzel
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1 resisted attempts to provide examples of his
2 handwriting for the purposes that the State could
3 compare that handwriting to the notebook. Kuenzel
4 even refused to obey a Grand Jury's subpoena and a
5 court order compelling him to hand over these
6 exemplars. These actions reflect a consciousness of
7 guilt. They are a suspicious conduct by a defendant
8 and it can provide sufficient corroboration of
9 accomplice testimony. This Court has held that. In
10 Green v. State, 61 So. 2d 394, where this Court held
11 that evidence showing the defendant's consciousness
12 of guilt may be corroborative of accomplice testimony
13 and that such evidence may be inferred from the
14 defendant's actions after the offense. The fact of a
15 notebook does provide an example that Venn and
16 Kuenzel were trying to get their stories straight at
17 the time and it does demonstrate a consciousness of
18 guilt. The third item of corroboration, Kuenzel made
19 highly incriminating statements to coworkers the very
20 next morning after this murder happened at 11:00 at
21 night. And these comments were made at 6:15 the next
22 morning. Kuenzel told a coworker, me and Harvey we
23 could kill somebody and get by with it. When the
24 coworker asked him what he meant, Kuenzel said if
25 you're going to kill someone you shoot them with a
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1 shotgun because the police will trace the bullet back
2 to you if you kill them with a pistol or a rifle.
3 And Kuenzel then said referring to Ms. Offord's
4 murder, just like that girl over in Sylacauga, they
5 don't have a clue to who did that and they won't.
6 Two other of Kuenzel's coworkers testified that
7 Kuenzel asked them as early as 6:15 on the morning
8 after the murder--and there's evidence to show Venn
9 or Kuenzel didn't listen to any radio or television
10 reports about the murder. But Kuenzel was--these
11 coworkers said that Kuenzel asked whether these
12 coworkers had heard about the shooting and the fact
13 that the perpetrator had taken nothing from the
14 store. And that happened in a matter of seven hours
15 after the murder occurred. And the fourth item is
16 that the defendant has made two attempts to procure
17 perjury in this case. And I know this is explained
18 away by this is some family who's hapless and
19 unsophisticated. And I don't know whether they are
20 or they're not but there's no evidence to support
21 that. But the important part of this is Kuenzel was
22 an active participant in these two demonstrations.
23 The first happened during the penalty phase or was
24 brought to light in the penalty phase. But the first
25 involved Kuenzel's cellmate, a man by the name of
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1 Orrie Goggins. And at the penalty phase Goggins
2 testified that he was offered money by Kuenzel and
3 his mother to testify that he was the one in the car
4 with Venn at the convenience store on the night of
5 the shooting. And it was even arranged for Goggins
6 to attend a hearing where Venn and Kuenzel were both
7 present so that Kuenzel could point out to Goggins
8 who Venn was so that he could say that he was with
9 him in the car. The second attempt is even worse.
10 And it continues by the way to this day. After
11 sentencing Kuenzel moved for a new trial, claimed
12 that he was having sex or was with a woman on the
13 night of the crime, her name was Lisa Sims. And he
14 was trying to provide an alibi. To support this
15 scheme Kuenzel offered the testimony of a 15 year old
16 cousin of Ms. Sims and her name's Darlene Peoples.
17 Ms. Peoples testified that Ms. Sims told her that she
18 had been with Kuenzel on the night of the murder.
19 However she recanted her testimony after Ms. Sims
20 testified that she didn't know anybody by the name of
21 William Kuenzel and had obviously never been with him
22 or had been to his house. At the hearing--at the
23 motion for new trial the defendant himself took the
24 stand and consistent with his fraudulent scheme he
25 testified that at the time of the murder he had spent
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1 the night with Ms. Sims. He identified her by her
2 name, by photo and then had her brought into court
3 where he identified her as well. So all of these
4 attempts to procure perjury that Kuenzel himself has
5 been involved in, certainly are evidence of his
6 guilt. And as I've said this fraudulent scheme is
7 being maintained to this day because Kuenzel in an
8 unsigned declaration that he presented in the
9 District Court and also the Court below this Court,
10 and the declaration for whatever reason is not
11 signed, but he still maintains that he with a woman
12 named Lisa on the night of the murder. And his
13 declaration is in the record at Volume I at 170.379.
14 The fifth item, even though--the other side
15 is correct that no one identified Kuenzel as being in
16 Venn's car close to the time of the murder. There
17 were several witnesses that do say they saw a male
18 person in the car with bushy hair and moustache. And
19 Kuenzel does fit that description. And the reason
20 that Kuenzel was unable to be identified is because
21 it was kind of humid rainy night and the windows had
22 fogged up so nobody could see in the car. And the
23 sixth item is Kuenzel escaped or attempted--or did
24 escape rather from the jail before his trial. As
25 this Court stated on direct appeal, evidence is
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1 generally relevant which shows that after the accused
2 was taken into custody he or she escaped, attempted
3 to escape or prepared to escape is tending to show
4 guilt or consciousness of guilt.
5 And now to April Harris. Her Grand Jury
6 testimony was a bit more equivocal than her trial
7 testimony but she does say, this is Volume I at 91
8 and this from the Grand Jury testimony, but judging
9 from the stature of the people that were in there I
10 believe that it was them referencing Kuenzel and
11 Venn. At 94 she says I believe that it was them.
12 The Eleventh Circuit looked at this evidence and they
13 said that the certainty about her testimony may have
14 evolved between--and she also gave a sworn witness
15 statement that was audio taped and transcribed before
16 her Grand Jury testimony, very solid in that sworn
17 witness statement, then in the Grand Jury testimony a
18 little bit more equivocal and then her trial
19 testimony. But the Eleventh Circuit just looked at
20 this as just a way that, you know, that she did have
21 slight variations but she repeatedly did identify the
22 two as being in the store at a point, an hour to an
23 hour and a half before the murder.
24 SENIOR JUDGE WELCH: Was it clear in your
25 Grand Jury testimony that when she says I saw them
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1 that she used the appellant's name?
2 MR. CRENSHAW: Yes, Your Honor. Yes she
3 did. And like I said look at 91 and 94, it's very
4 clear that--I mean there's not any kind of a doubt
5 that that's who she's referring to. And just some of
6 the things that have been mentioned, just some of the
7 random points here. Now as I said Venn when he was
8 initially interrogated did have this story that he
9 was at a friend's house at like 8:00 in the evening
10 and that he then came I believe to the store at some
11 point around 10:00 and said that Kuenzel was not with
12 him. And he does identify--at some point he says
13 there was this person at the store named David Pope
14 who got in the car with him I think for, like, two or
15 three minutes is what he said. You know there's some
16 implication that this wasn't turned over, look at in
17 the trial record at 165 and 66. Venn was questioned
18 about this person named David Pope. All of this
19 information regarding Venn's statements, and he gave
20 three of them, the last two were audio taped and
21 transcribed, but read Venn's testimony and read the
22 cross examination. It was all turned over and Venn
23 was thoroughly impeached on the fact that he had
24 given some inconsistent statements. I believe that's
25 all I have today and I'll be glad to entertain any
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1 further questions. The State asks for this Court to
2 affirm the Lower Court. Thank you.
3 MR. KOCHMAN: Your Honor, first the
4 remainder of my time let me speak to the case that I
5 was referencing which is State v. Baker. It's a
6 February 6th, 2015 case from this Court, which
7 recognizes that equitable tolling can apply for the
8 six month statute. Your Honor -- like with double
9 jeopardy, Courts do not have the power to accept a
10 conviction where there is insufficient corroboration.
11 It is the same thing as with double jeopardy. And
12 that's what exists in this case. It can be a limited
13 rule and it only pertains to the existence and not
14 the sufficiency. And this is a good rule, the
15 corroboration rule as counsel recognized there have
16 been statutes to try to repeal it but it's a solid
17 rule as recognized by the Court in Reed v. State, 407
18 So. 2d 153. A guilty party when offered immunity
19 from prosecution will say virtually anything. The
20 more serious the penalty, the more likely someone is
21 going to present false testimony. If this conviction
22 is going to stand it is on the basis of Harvey Venn
23 and we must recognize that.
24 Addressing the other items of evidence, and
25 I think it's important to go there, the other items
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1 most of which occurred after the conviction had
2 transpired. So if we accept the underlying premise
3 that my client was unjustly convicted, just accept it
4 for one moment there, everything that happened
5 afterwards, the attempt to procure bribery by
6 someone's mother, you know, it's a horrible fact in
7 our case but no case is perfect. This is an attempt
8 by a mother to try to correct what she perceived as
9 an injustice. The implication that Kuenzel was
10 involved in this is false. And if Kuenzel was
11 offered an opportunity to explain he would explain
12 that he was only implicated. He pled to aiding and
13 abetting this to keep his mother out of jail. And
14 the Court can take notice of the fact that his mother
15 did not serve a single day in jail time.
16 Additionally the same prosecutor that prosecuted the
17 mother is the prosecutor who was involved in this
18 underlying case. There were serious misgivings and
19 serious problems that occurred at the trial in this
20 case in Talladega County by Robert Rumsey. The
21 hearsay point that the State has offered here, I
22 think it's important to note that the State didn't
23 even introduce this in its case and chief. In fact
24 it only came in later. So the State thought it so
25 unimportant to not introduce it in its initial
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1 statements. The fact about Kuenzel maintains that
2 he was with a woman that night that he had met two
3 days beforehand, we have been unable to locate this
4 woman. And that is the reason why I don't argue to
5 you that Kuenzel is innocent because of that or that
6 she provides an alibi. Instead our argument is that
7 Kuenzel's alibi as presented at trial which is his
8 step-father who says he saw him sleeping--Kuenzel
9 sleeping in his house at about 10:00 that night.
10 That that alibi now could be believed. And that's
11 because of the gun evidence. At first it was only
12 Kuenzel who had a 16 gauge shotgun and only Venn who
13 says that Kuenzel had a 16 gauge shotgun. The
14 evidentiary landscape has dramatically evolved here
15 based on the State's releasing of new evidence.
16 I'd also note that this Court was aware of
17 all of these facts at the time it issued its 1990
18 decision. And when addressing lack of corroboration,
19 none of these facts were raised. The only facts that
20 were raised were that multiple witnesses saw Venn at
21 the store and April Harris identifies Venn and
22 Kuenzel together. I disagree with the State's
23 characterization of this being mere equivocation or
24 less certain. She flatly says I didn't see anything.
25 I couldn't get a description, I couldn't see a face.
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1 There's simply--and our position is there simply is
2 no way to reconcile that. Her belief that she saw
3 Venn and Kuenzel together is completely
4 unsubstantiated evidence. We would not allow someone
5 to go in and present evidence that she believes she
6 saw them if there is no foundation. This isn't a
7 case of I thought I saw them. Basing it on stature
8 when she couldn't tell them what they're wearing, she
9 couldn't see a face, she couldn't get any
10 description. It simply is non-evidence and it's
11 because this evidence was not--the Grand Jury
12 evidence was not turned over in the initial phase.
13 JUDGE JOINER: You're giving a quite
14 different description of the Grand Jury testimony
15 that Mr. Crenshaw gave. If I understand him
16 correctly, he quoted I believe it was him regarding
17 April--or I believe it was them. And again Judge
18 Welch I think asked the question, was that clearly a
19 reference to Kuenzel and Venn.
20 MR. KOCHMAN: It certainly was clearly a
21 reference. The selective--that was at the prompting
22 of the prosecutor. So I think if you'd look at the
23 Grand Jury testimony you'll see. The prosecutor was
24 prompting the witness or encouraging the witness to
25 provide that identification because he knew how
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1 important it was. The witness also says--
2 SENIOR JUDGE WELCH: [Interposing] The
3 question here is, let's say that all of us, our heart
4 is with you, can we do our duty and uphold the law in
5 deciding your favor. There is no--I looked and
6 unless I missed it there is no case in Alabama that
7 deals with whether or not lack of corroboration
8 presents a jurisdictional issue in a post conviction
9 proceeding. There are cases that deal with
10 jurisdictional questions in terms of preservation on
11 direct appeal. But aren't we mandated by our duty to
12 follow the rules as they exist? We can't just willy-
13 nilly ignore them can we?
14 MR. KOCHMAN: Absolutely not. And I don't
15 believe that's--
16 SENIOR JUDGE WELCH: [Interposing] - -
17 allows us to ignore the fact that this is a non-
18 jurisdictional claim.
19 MR. KOCHMAN: Well, Your Honor, there's no
20 rule that holds that it is a non-jurisdictional
21 claim. What we are asking this Court to find is that
22 in the scenario here where it is about the existence
23 of corroboration, where there isn't something else to
24 look at.
25 SENIOR JUDGE WELCH: If she says in the
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1 Grand Jury testimony I believe it was the appellant.
2 And then she says I can't give a face. And then she
3 testifies it was him during the trial itself. What
4 we're dealing with is prior inconsistent statements.
5 MR. KOCHMAN: Your Honor, in the event of
6 this situation it would only be appropriate to go
7 back and to present it. To allow this conviction to
8 stand--may I continue, Your Honor, the thought?
9 SENIOR JUDGE WELCH: Yes, finish your
10 thought. But let's not make it five minutes long.
11 MR. KOCHMAN: Okay. To allow this
12 conviction to stand where April Harris says one thing
13 at trial and says something that is inconsistent, we
14 maintain directly contradictory, without at least
15 offering an opportunity to reexamine where Kuenzel
16 has not received an evidentiary hearing or any
17 process in the Courts, we believe would be manifestly
18 unjust. Your Honors, we implore the Court to find a
19 way to reverse this case and to send it back down.
20 Thank you for the Court's time.
21 SENIOR JUDGE WELCH: I want to thank you
22 both. I appreciate you coming here and advancing
23 your arguments. It's clear that you were both well
24 prepared and have advanced a number of important
25 points. As you can see we are also prepared and we
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1 have looked at this case in some detail to prepare
2 ourselves to hear what you had to say. We'll
3 certainly take into consideration and issue a
4 decision in an appropriate time frame. And we do
5 appreciate you coming. Thank you. We're in recess.
6 [END OF HEARING]
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Aa--and 8:21abetting 37:13ability 11:9 17:443:8able 5:21 12:1516:10absence 2:6 12:9absent 5:19 7:3absolutely 14:2140:14accept 13:5 28:336:9 37:2,3accident 13:11,12accomplice 4:219:15 17:17 27:428:11 30:9,12accomplice's 6:19accurate 43:7accused 34:1acknowledged29:11acquittal 17:13,23acted 14:4actions 30:6,14active 10:4,8 20:631:22actual 25:9 27:13addition 14:18additional 10:9Additionally 37:16address 7:20 18:920:24,24 24:1,17addressing 36:2438:18advanced 41:24advancing 41:22advocate 19:18affect 27:13affidavit 21:14affirm 36:2affirmatively 24:25agree 12:4 17:6agreed 7:14ahead 16:22aiding 37:12Alabama 1:1,7,11
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3300 1:1232 6:12 7:13 17:917:24 26:1,4 27:327:1232.1(b) 26:1432.1(e)3 7:932.2 18:6 28:1532.2(a)5 6:1132.2(b) 6:1332.2(c) 10:15347 29:7349 29:735th 3:1436104 1:13394 30:10
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REL: 07/10/2015
Notice: This opinion is subject to formal revision before publication in the advancesheets 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 madebefore the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2014-2015
_________________________
CR-13-0899_________________________
William Ernest Kuenzel
v.
State of Alabama
Appeal from Talladega Circuit Court(CC-88-211.60)
KELLUM, Judge.
William Ernest Kuenzel appeals the circuit court's
summary dismissal of his second petition for postconviction
relief filed pursuant to Rule 32, Ala. R. Crim. P.
CR-13-0899
In 1988, Kuenzel was convicted of murder made capital
because it was committed during the course of a robbery, see
§ 13A-5-40(a)(2), Ala. Code 1975. The jury unanimously
recommended that Kuenzel be sentenced to death, and the trial
court followed the jury's recommendation and sentenced Kuenzel
to death for his capital-murder conviction. This Court
affirmed Kuenzel's conviction and death sentence on appeal,
Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990), and
the Alabama Supreme Court affirmed this Court's judgment, Ex
parte Kuenzel, 577 So. 2d 531 (Ala. 1991). This Court issued
a certificate of judgment on March 28, 1991. The United
States Supreme Court denied certiorari review on October 7,
1991. Kuenzel v. Alabama, 502 U.S. 886 (1991).
On October 4, 1993, Kuenzel filed his first Rule 32
petition for postconviction relief challenging his conviction
and death sentence. The circuit court summarily dismissed the
petition on the ground that it had been filed after the
limitations period in Rule 32.2(c), Ala. R. Crim. P., had
expired. This Court affirmed the circuit court's judgment on1
In 1993, the limitations period was two years. The1
Alabama Supreme Court amended Rule 32.2(c) effective August 1,2002, to reduce the limitations period to one year.
2
CR-13-0899
appeal in an unpublished memorandum issued on January 28,
2000, Kuenzel v. State (No. CR-98-1216), 805 So. 2d 783 (Ala.
Crim. App. 2000) (table), and the Alabama Supreme Court denied
certiorari review, Ex parte Kuenzel (No. 1991081), 806 So. 2d
414 (Ala. 2000) (table).
On February 7, 2000, Kuenzel filed a federal habeas
corpus petition in the United States District Court for the
Northern District of Alabama, requesting relief from his
conviction and death sentence. In 2002, that court found
Kuenzel's habeas petition to be time-barred by the limitations
period in 28 U.S.C. § 2244(d). On appeal, the United States
Court of Appeals for the Eleventh Circuit vacated the district
court's judgment. Kuenzel v. Campbell, 85 Fed. App'x 726
(2003) (table). On remand from the Eleventh Circuit, the
district court again found Kuenzel's habeas petition to be
time-barred. On appeal, the Eleventh Circuit vacated the
district court's judgment a second time. Kuenzel v. Allen,
488 F.3d 1341 (11th Cir. 2007). On second remand, the
district court found, for the third time, that Kuenzel's
habeas petition was time-barred; the court also concluded that
Kuenzel's assertion of actual innocence did not excuse his
3
CR-13-0899
procedural default because Kuenzel had failed to make a
credible showing of actual innocence founded on new and
reliable evidence that had not been presented at trial.
Kuenzel v. Allen, 880 F. Supp. 2d 1162 (N.D. Ala. 2009). The
district court subsequently denied Kuenzel's postjudgment
motion filed pursuant to Rule 60(b), Fed. R. Civ. P., to set
aside the district court's dismissal of his habeas petition.
Kuenzel v. Allen, 880 F. Supp. 2d 1205 (N.D. Ala. 2011). On
appeal, the United States Court of Appeals for the Eleventh
Circuit affirmed the district court's dismissal of Kuenzel's
habeas petition and its denial of Kuenzel's postjudgment Rule
60(b), Fed. R. Civ. P., motion. Kuenzel v. Commissioner,
Alabama Dep't Of Corr., 690 F.3d 1311 (11th Cir. 2012).
On September 23, 2013, Kuenzel filed his second Rule 32
petition for postconviction relief, which is the subject of
this appeal. In his petition, Kuenzel alleged: (1) that the
trial court lacked jurisdiction to render the judgment or to
impose the sentence because, he said, his conviction was based
on the uncorroborated testimony of his accomplice, in
violation of § 12-21-222, Ala. Code 1975; and (2) that newly
discovered material facts would show that he is actually
4
CR-13-0899
innocent of the crime. Kuenzel attached to his petition
several exhibits in support of his claims. On or about
December 27, 2013, the State filed a response and motion for
summary dismissal of Kuenzel's petition, arguing, in relevant
part, that both of Kuenzel's claims were time-barred by Rule
32.2(c), Ala. R. Crim. P. On February 11, 2014, the circuit
court issued an order summarily dismissing Kuenzel's petition.
In its order, the circuit court found, in relevant part, that
both of Kuenzel's claims were time-barred by Rule 32.2(c). 2
On March 12, 2014, Kuenzel filed a postjudgment motion to
alter, amend, or vacate the circuit court's judgment. That
motion was effectively denied on March 13, 2014, 30 days after
the circuit court's order summarily dismissing Kuenzel's
petition. See Loggins v. State, 910 So. 2d 146, 148-49 (Ala.
Crim. App. 2005) (a circuit court retains jurisdiction to
modify a judgment in Rule 32 proceedings for only 30 days
after the judgment is entered; even a timely filed
postjudgment motion does not extend the circuit court's
jurisdiction).
The circuit court also made alternative findings2
regarding Kuenzel's claims.
5
CR-13-0899
On appeal, Kuenzel reasserts the two claims asserted in
his petition and argues that the circuit court erred in
summarily dismissing those claims without affording him an
evidentiary hearing. We disagree.
"[W]hen the facts are undisputed and an appellate court
is presented with pure questions of law, that court's review
in a Rule 32 proceeding is de novo." Ex parte White, 792 So.
2d 1097, 1098 (Ala. 2001). "However, where there are disputed
facts in a postconviction proceeding and the circuit court
resolves those disputed facts, '[t]he standard of review on
appeal ... is whether the trial judge abused his discretion
when he denied the petition.'" Boyd v. State, 913 So. 2d
1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State,
601 So. 2d 1118, 1119 (Ala. Crim. App. 1992)). "On direct
appeal we reviewed the record for plain error; however, the
plain-error standard of review does not apply to a Rule 32
proceeding attacking a death sentence." Ferguson v. State, 13
So. 3d 418, 424 (Ala. Crim. App. 2008). Additionally, "[i]t
is well settled that 'the procedural bars of Rule 32 apply
with equal force to all cases, including those in which the
death penalty has been imposed.'" Nicks v. State, 783 So. 2d
6
CR-13-0899
895, 901 (Ala. Crim. App. 1999) (quoting State v. Tarver, 629
So. 2d 14, 19 (Ala. Crim. App. 1993)).
A Rule 32 petitioner is entitled to an evidentiary
hearing on a claim in a postconviction petition only if the
claim is "meritorious on its face." Ex parte Boatwright, 471
So. 2d 1257, 1258 (Ala. 1985). A postconviction claim is
"meritorious on its face" only if the claim (1) is
sufficiently pleaded in accordance with Rule 32.3 and Rule
32.6(b); (2) is not precluded by one of the provisions in Rule
32.2; and (3) contains factual allegations that, if true,
would entitle the petitioner to relief. A Rule 32 petitioner
is not entitled to an evidentiary hearing on claims that are
precluded by one or more of the provisions in Rule 32.2. See
Sumlin v. State, 710 So. 2d 941, 943 (Ala. Crim. App. 1998)
("[B]ecause the issues he raised were procedurally barred, the
appellant was not entitled to an evidentiary hearing on his
petition.").
For the reasons explained below, we conclude that both of
the claims in Kuenzel's petition are time-barred by Rule
32.2(c) and that, therefore, Kuenzel was not entitled to an
evidentiary hearing on those claims.
7
CR-13-0899
I.
Kuenzel first alleged in his petition that the trial
court lacked jurisdiction to render the judgment or to impose
the sentence because, he said, his conviction was based on the
uncorroborated testimony of his accomplice, Harvey Venn, in
violation of § 12-21-222, Ala. Code 1975
Although couched in jurisdictional terms, Kuenzel's claim
that he was convicted based on the uncorroborated testimony of
his accomplice is not truly a jurisdictional claim. Both the
Alabama Supreme Court and this Court have recognized that a
claim that a conviction is based on the uncorroborated
testimony of an accomplice in violation of § 12-21-222 is
waived on direct appeal if not properly and specifically
presented to the trial court. See Ex parte Weeks, 591 So. 2d
441 (Ala. 1991), and Marks v. State, 20 So. 3d 166 (Ala. Crim.
App. 2008) (both refusing to consider argument that conviction
was based on uncorroborated accomplice testimony when that
argument had not been properly presented to the trial court).
"Nonjurisdictional issues can be waived; jurisdictional issues
cannot." Mitchell v. State, 777 So. 2d 312, 313 (Ala. Crim.
App. 2000). Because a claim that a conviction is based on the
8
CR-13-0899
uncorroborated testimony of an accomplice can be waived, it is
necessarily a nonjurisdictional claim. Indeed, a challenge to
the alleged lack of accomplice corroboration under § 12-21-222
is clearly nothing more than a challenge to the sufficiency of
the evidence, an undisputedly nonjurisdictional challenge.
See, e.g., Ex parte Batey, 958 So. 2d 339, 343 (Ala. 2006)
("Alabama courts have repeatedly held that an argument about
the adequacy of the State's evidence is not jurisdictional and
is therefore barred by Rule 32.2."); and Baker v. State, 907
So. 2d 465, 467 (Ala. Crim. App. 2004) ("A challenge to the
sufficiency of the evidence is not jurisdictional.").
Because Kuenzel's claim that he was convicted based on
the uncorroborated testimony of his accomplice in violation of
§ 12-21-222 is nonjurisdictional, it is subject to the
preclusions in Rule 32.2. Specifically, his claim is, as the
State asserted and as the circuit court found, time-barred by
Rule 32.2(c) because Kuenzel's petition was filed over 20
years after his conviction and sentence became final. To the3
extent that this claim is based on newly discovered material
Because this claim is time-barred, we need not address3
Kuenzel's arguments regarding the propriety of the circuitcourt's alternative findings on this claim.
9
CR-13-0899
facts, it is time-barred for the reasons stated in Part II of
this opinion.
II.
Kuenzel next alleged in his petition that he was actually
innocent of the crime based on what he claimed was newly
discovered material facts under Rule 32.1(e), Ala. R. Crim. P.
Kuenzel alleged that the following evidence constituted newly
discovered material facts entitling him to a new trial: (1)
recorded statements made to the police by Kuenzel's
accomplice, Harvey Venn, that were inconsistent with Venn's
trial testimony and, Kuenzel alleged, pointed to another man
as the perpetrator; (2) the grand-jury testimony of State's
witness April Harris, who testified at trial that she saw
Kuenzel and Venn at the convenience store where the crime
occurred approximately an hour before the crime, but who was
more equivocal during her grand-jury testimony regarding her
identification of Kuenzel and Venn; (3) the grand-jury
testimony of Crystal Floyd -- who was Venn's 13-year-old
girlfriend at the time of the crime but who did not testify at
Kuenzel's trial -- that was inconsistent with affidavits she
had given to Kuenzel's postconviction counsel in 1997 and
10
CR-13-0899
2008; and (4) evidence that Venn had in his possession the
night of the crime a 16-gauge shotgun, the same caliber weapon
as the murder weapon, not a 12-gauge shotgun as Venn had
testified at trial. Kuenzel alleged in his petition that the
first three items of evidence listed above were first
discovered "in March 2010" (C. 44) and that the fourth item of
evidence listed above was discovered "in the mid-1990's." (C.
21.)
Rule 32.2(c) provides, in relevant part:
"Subject to the further provisions hereinafterset out in this section, the court shall notentertain any petition for relief from a convictionor sentence on the grounds specified in Rule 32.1(a)and (f), unless the petition is filed: (1) In thecase of a conviction appealed to the Court ofCriminal Appeals, within one (1) year after theissuance of the certificate of judgment by the Courtof Criminal Appeals under Rule 41, Ala. R. App. P.... The court shall not entertain a petition basedon the grounds specified in Rule 32.1(e) unless thepetition is filed within the applicable one-yearperiod specified in the first sentence of thissection, or within six (6) months after thediscovery of the newly discovered material facts,whichever is later; provided, however, that theone-year period during which a petition may bebrought shall in no case be deemed to have begun torun before the effective date of the precursor ofthis rule, i.e., April 1, 1987."
Kuenzel admitted in his petition that he had discovered
the majority of the evidence forming the basis of his claim of
11
CR-13-0899
newly discovered material facts in March 2010 and that he had
discovered one item of evidence in the mid 1990s. However,
Kuenzel did not file this petition raising his claim of newly
discovered material facts until September 2013, over three
years after the majority of the evidence had been discovered
(and almost two decades after one of the items of evidence had
been discovered) and long after the six-month limitation
period for newly discovered material facts in Rule 32.2(c) had
expired. Therefore, Kuenzel's claim of actual innocence based
on newly discovered material facts under Rule 32.1(e) is time-
barred by Rule 32.2(c).
We note that it appears that Kuenzel attempted in his
petition, albeit vaguely, to assert the doctrine of equitable
tolling for his claim of newly discovered material facts, and
he reasserts that argument on appeal. In his petition,
Kuenzel alleged:
"While Kuenzel anticipates the State will arguethat Kuenzel should have filed this successive Rule32 petition in or about August 2010, within sixmonths of its disclosure in March 2010 of evidencethe State had long suppressed, at the time Kuenzelactively was litigating claims in federal court and,if relief had been granted, there would have been noneed for this proceeding. Moreover, the State canidentify no prejudice because at no time did Kuenzeldelay in presenting his evidence, and Kuenzel had no
12
CR-13-0899
control over when (or if) the State would eventuallydecide to produce evidence that Kuenzel always hadbeen entitled to receive; evidence that plainlycould not have been discovered earlier through theexercise of reasonable diligence because it wasbeing suppressed by the State. If any party hasbeen prejudiced by the delayed presentation ofevidence, it is Kuenzel."
(C. 44-45.) The circuit court rejected this argument as4
insufficient to establish that Kuenzel was entitled to
equitable tolling. We agree with the circuit court.
It is well settled that equitable tolling of the
limitations period in Rule 32.2(c) "is available in
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).
In other words, a Rule 32 petitioner is entitled to equitable
tolling of the limitations period in Rule 32.2(c) if
extraordinary circumstances beyond the petitioner's control
prevented the petitioner from timely filing his or her Rule 32
petition despite the petitioner's exercise of diligence. See,
e.g., Helton v. Secretary for Dep't of Corr., 259 F.3d 1310,
Although Kuenzel repeatedly stated in his petition that4
the State had "suppressed" the alleged newly discoveredmaterial facts, Kuenzel did not specifically raise a Brady v.Maryland, 373 U.S. 83 (1963), claim in his petition.
13
CR-13-0899
1312 (11th Cir. 2001) ("Equitable tolling can be applied ...
when 'extraordinary circumstances' have worked to prevent an
otherwise diligent petitioner from timely filing his
petition."); and Harris v. Hutchinson, 209 F.3d 325, 330 (4th
Cir. 2000) (noting that a habeas corpus petitioner is entitled
to equitable tolling if he or she establishes an
"extraordinary circumstance beyond his [or her] control that
prevented him [or her] from complying with the statutory time
limit"). "Because equitable tolling is 'an extraordinary
remedy,' it 'is limited to rare and exceptional circumstances'
and 'typically applied sparingly.'" Hunter v. Ferrell, 587
F.3d 1304, 1308 (11th Cir. 2009) (quoting Lawrence v. Florida,
421 F.3d 1221, 1226 (11th Cir. 2005), aff'd, 549 U.S. 327
(2007)). Moreover, "[b]ecause the limitations provision is
mandatory and applies in all but the most extraordinary of
circumstances, when a petition is time-barred on its face the
petitioner bears the burden of demonstrating in his petition
that there are such extraordinary circumstances justifying the
application of the doctrine of equitable tolling." Ex parte
Ward, 46 So. 3d at 897. "A petition that does not assert
equitable tolling, or that asserts it but fails to state any
14
CR-13-0899
principle of law or any fact that would entitle the petitioner
to the equitable tolling of the applicable limitations
provision, may be summarily dismissed without a hearing." Id.
at 897-98.
In this case, Kuenzel's vague attempt to assert equitable
tolling is woefully insufficient to establish the existence of
extraordinary circumstances beyond Kuenzel's control that were
unavoidable even with the exercise of diligence and that
prevented Kuenzel from timely filing his Rule 32 petition
within the six-month limitations period for newly discovered
material facts applicable here. Kuenzel argued that he was
entitled to equitable tolling because, he said, his failure to
timely file his Rule 32 petition alleging newly discovered
material facts was the result of his litigating his habeas
corpus petition in federal court. However, his pending
federal habeas petition was not an extraordinary circumstance
that prevented him from filing a Rule 32 petition within six
months of his learning, in March 2010, about the alleged newly
discovered material facts. Kuenzel has cited no authority,
and we have found none, that prevents a Rule 32 petitioner
15
CR-13-0899
from filing a Rule 32 petition in state court while he or she
has a habeas petition pending in federal court.
Kuenzel further appeared to allege that he was entitled
to equitable tolling because, he said, the State would not be
prejudiced if equitable tolling were applied to toll the
limitations period in Rule 32.2(c). However, the alleged lack
of prejudice to the State is not a valid basis for the
application of equitable tolling. Alleged lack of prejudice
to the State is not an extraordinary circumstance and
certainly would not operate to prevent a Rule 32 petitioner
from timely filing a Rule 32 petition.
It is apparent here that Kuenzel could have timely filed
his Rule 32 petition within six months of his learning of the
alleged newly discovered material facts, or by September 2010,
but that he made a conscious choice not to do so in hopes of
obtaining relief in federal court. Only when he did not
obtain the relief he wanted in federal court did Kuenzel
decide to pursue a state remedy. However, the doctrine of
equitable tolling does not permit a Rule 32 petitioner to
belatedly reconsider his or her choice not to timely file a
Rule 32 petition only after he or she is denied relief in
16
CR-13-0899
another forum. Therefore, Kuenzel is not entitled to
equitable tolling.
III.
Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit
court to summarily dismiss a petitioner's Rule 32 petition
"[i]f the court determines that the petition is notsufficiently specific, or is precluded, or fails tostate a claim, or that no material issue of fact orlaw exists which would entitle the petitioner torelief under this rule and that no purpose would beserved by any further proceedings ...."
See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App.
2003); Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App.
2002); Tatum v. State, 607 So. 2d 383, 384 (Ala. Crim. App.
1992). Because both of Kuenzel's claims were time-barred by
Rule 32.2(c) and because Kuenzel failed to allege in his
petition any principle of law or any fact that would entitle
him to equitable tolling, summary disposition of Kuenzel's
Rule 32 petition was appropriate.
Based on the foregoing, the judgment of the circuit court
is affirmed.
AFFIRMED.
Welch, Burke, and Joiner, JJ., concur. Windom, P.J.
recuses herself.
17
CR-13-0899
William Ernest Kuenzel v. State of Alabama (Appeal from Talladega Circuit Court:CC88-211.60)
NOTICE
September 11, 2015
Death Penalty
P. O. Box 301555
Montgomery, AL 36130-1555
(334) 229-0751
Fax (334) 229-0521
COURT OF CRIMINAL APPEALSSTATE OF ALABAMA
D. Scott Mitchell
Clerk
Gerri Robinson
Assistant Clerk
You are hereby notified that on September 11, 2015, the following action was taken in theabove referenced cause by the Court of Criminal Appeals:
Application for Rehearing Overruled.
D. Scott Mitchell, ClerkCourt of Criminal Appeals
Hon. William E. Hollingsworth, III, Circuit JudgeHon. Brian York, Circuit ClerkJeffrey E. Glen, Attorney - Pro HacRene F. Hertzog, Attorney - Pro HacG Douglas Jones, AttorneyDavid Kochman, Attorney - Pro HacLuke Montgomery, AttorneyJames Clayton Crenshaw, Asst. Atty. Gen.Kristi Deason Hagood, Dep. Atty. General
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