Opinion
CR-2022-1285
06-23-2023
T.C.S. v. STATE of Alabama
Katherine Pattillo Wilsey of Pattillo Law, LLC, Tuscaloosa, for appellant. Steve Marshall, att’y gen., and Marc A. Starrett, asst. att’y gen., for appellee.
Katherine Pattillo Wilsey of Pattillo Law, LLC, Tuscaloosa, for appellant.
Steve Marshall, att’y gen., and Marc A. Starrett, asst. att’y gen., for appellee.
KELLUM, Judge.
T.C.S. appeals the circuit court’s summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P.
In December 2016, T.C.S. was convicted of two counts of first-degree sodomy, three counts of sexual abuse of a child less than 12 years old, and one count of enticing a child for immoral purposes. The victims, A.W. and M.W., were less than six years old at the time of the crimes, and T.C.S. was their maternal grandfather. The trial court sentenced T.C.S. to life imprisonment without the possibility of parole for each of the sodomy convictions, to 20 years’ imprisonment for each of the sexual-abuse convictions, and to 10 years’ imprisonment for the enticing-a-child-for-immoral-purposes conviction. This Court affirmed T.C.S.’s convictions and sentences on direct appeal in an unpublished memorandum issued on October 6, 2017. T.C.S. v. State (No. CR-16-0498), 268 So. 3d 597 (Ala. Crim. App. 2017) (table). This Court issued a certificate of judgment on October 25, 2017.
On September 6, 2022, T.C.S. filed this, his second, Rule 32 petition. In his petition, T.C.S. alleged that juror misconduct occurred when, he said, juror A.A.G., who ultimately served as jury foreman, "failed to accurately answer" questions during voir dire. (C. 10.) Specifically, he argued that A.A.G. erroneously stated during voir that the victims’ paternal grandmother, Mo.W., who was a witness at trial, was his third cousin when, in fact, she was his second cousin, and that he failed to reveal that they "would attend church together and attend other family functions together." (C. 10.) According to T.C.S., if his trial counsel had known that A.A.G. and Mo.W. "shared a closer kinship and family dynamic … he would have used one of the peremptory strikes to remove" A.A.G. from the jury venire. (C. 11.) T.C.S. acknowledged in his petition that the petition was filed outside the limitations period in Rule 32.2(c), Ala. R. Crim. P., but he argued that he was entitled to the application of equitable tolling. In addition, simultaneously with his petition, T.C.S. filed a motion for an enlargement of time, in which he requested that the circuit court afford him equitable tolling and accept his untimely petition or at least conduct a hearing on whether he was entitled to the application of equitable tolling.
This Court affirmed the circuit court's summary dismissal of T.C.S.’s first Rule 32 petition by unpublished memorandum. T.C.S. v. State (No. CR-18-18-0334), 302 So. 3d 281 (Ala. Crim. App. 2019) (table).
On September 20, 2022, the circuit court granted T.C.S.’s request for a hearing on his assertion that he was entitled to the application of equitable tolling. On September 22, 2022, the State filed a response to T.C.S.’s motion for an enlargement, arguing that he was not entitled to equitable tolling. The next day, the State filed an answer to T.C.S.’s petition, arguing that his juror-misconduct claim was precluded by Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P., because it could have been, but was not, raised and addressed at trial and on appeal; it was precluded as successive by Rule 32.2(b), Ala. R. Crim. P.; and it was time-barred by Rule 32.2(c). The State also argued that A.A.G. disclosed during voir dire that he was related to Mo.W., and that T.C.S. could have "further explored" that relationship during voir dire, but he failed to do so. (C. 31.) T.C.S. did not file a reply to the State’s answer. On October 5, 2022, the circuit court conducted a hearing on the issue of equitable tolling, hearing testimony from multiple witnesses and arguments of the parties. On October 11, 2022, the circuit court denied T.C.S.’s motion for an enlargement of time, finding that he was not entitled to equitable tolling, and it summarily dismissed T.C.S.’s Rule 32 petition. The circuit court found that T.C.S.’s juror-misconduct claim was precluded by Rules 32.2(a)(3), (a)(5), (b), and (c). T.C.S. timely filed a postjudgment motion to reconsider, which was deemed denied 30 days after the circuit court’s order summarily dismissing the petition. See, e.g., Loggins v. State, 910 So. 2d 146, 149 (Ala. Crim. App. 2005) (recognizing that a motion to reconsider is a valid postjudgment motion in the Rule 32 context but that a circuit court retains jurisdiction to modify a judgment in Rule 32 proceedings for only 30 days after the judgment is entered).
[1] On appeal, T.C.S.’s sole argument is that "[t]he trial court erred in denying T.C.S.’s motion for enlargement of time because he met his burden of proving equitable tolling." (T.C.S.’s brief, p. 10.) He requests that we reverse the circuit court’s judgment and remand this cause for the circuit court to conduct an evidentiary hearing on his juror-misconduct claim. We need not address whether T.C.S. was entitled to equitable tolling because, even if he was, that would not warrant reversal of the circuit court’s judgment or entitle T.C.S. to an evidentiary hearing on his juror-misconduct claim. "[T]he doctrine of equitable tolling is an exception only to the limitations provision of Rule 32.2(c), Ala. R. Crim. P." State v. Baker, 172 So. 3d 860, 866 (Ala. Crim. App. 2015). But Rule 32.2(c) was not the only preclusion the circuit court found applicable to T.C.S.’s claim. The circuit court also found that the claim was precluded by Rules 32.2(a)(3) and (a)(5), and we agree.
[2, 3] A claim of juror-misconduct is not jurisdictional, see, e.g., McLeod v. State, 121 So. 3d 1020, 1023 (Ala. Crim. App. 2012), but is a constitutional claim arising under Rule 32.1(a), Ala. R. Crim. P., see Ex parte Pierce, 851 So. 2d 606, 612 (Ala. 2000). As such, it is subject to the preclusions in Rule 32.2, including Rules 32.2(a)(3) and (a)(5). Although a Rule 32 petitioner raising a claim under Rule 32.1(a) does not have to plead facts in his petition tending to negate the preclusions in Rule 32.2(a)(3) and (5), see Ex parte Beckworth, 190 So. 3d 571, 573-75 (Ala. 2013), once the State asserts Rules 32.2(a)(3) and (a)(5) in its response to a Rule 32 petition, the petitioner "ha[s] the burden of establishing in his reply to the State’s answer and/or at a hearing that the preclusionary bars pleaded by the State were inapplicable and that summary dismissal was improper." Id. at 576 (Stuart, J., concurring specially). [4–6] T.C.S. did not reply to the State’s answer to his petition, nor did he present any argument or evidence at the hearing to establish that the preclusions in Rule 32.2(a)(3) and (a)(5) were not applicable to his claim of juror misconduct. Although the purpose of the hearing was to address T.C.S.’s assertion that he was entitled to the application of equitable tolling, nothing in the record indicates that T.C.S. was prohibited from addressing the other preclusions the State had asserted in its answer. He likewise did not address the applicability of Rules 32.2(a)(3) and (a)(5) in his postjudgment motion to reconsider, nor does he do so in his brief on appeal. The record from T.C.S.’s direct appeal reflects that, when the prosecutor asked during voir dire whether any prospective jurors knew Mo.W. or her husband, G.W., the following occurred:
This Court may take judicial notice of its own records. See Nettles v. State, 731 So. 2d 626, 629 (Ala. Crim. App. 1998), and Hull v. State, 607 So. 2d 369, 371 n. 1 (Ala. Crim. App. 1992).
"[A.A.G.]: [Mo.W.] and I are distant kin. Third?
"[Mo.W.]: Third.
"[A.A.G.]: Third cousins."
(Record on Direct Appeal, R. 99.) A.A.G. was obviously unsure of the degree of consanguinity between himself and Mo.W. until Mo.W., who was not under oath, stated that they were third cousins. Yet, despite the opportunity to do so, T.C.S. did not question A.A.G. further regarding the degree of consanguinity, did not pose any questions regarding A.A.G.’s going to church or family functions with Mo.W., and did not ask how close A.A.G. was with Mo.W. Simply put, T.C.S. was alerted during voir dire to the fact that A.A.G. and Mo.W. were related and further information regarding their relationship could have been ascertained through additional questioning. A juror-misconduct claim is " ‘cognizable [in a Rule 32 petition] as long as [the petitioner] establishe[s] that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.’ " Ex parte Burgess, 21 So. 3d 746, 751 (Ala. 2008) (quoting Ex parte Pierce, 851 So. 2d at 616). Because the information about A.A.G.’s relationship with Mo.W. could reasonably have been discovered at trial, the circuit court correctly found that T.C.S.’s jurormisconduct claim was precluded by Rules 32.2(a)(3) and (a)(5).
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 not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings …."
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 T.C.S.’s juror-misconduct claim was precluded by Rules 32.2(a)(3) and (a)(5), summary disposition of T.C.S.’s Rule 32 petition was appropriate.
Based on the foregoing, the judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., and Cole and Minor, JJ., concur. McCool, J., recuses himself.