REL: 04/04/2008
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-1485
_________________________
Johnathan Long
v.
State of Alabama
Appeal from Jefferson Circuit Court, Bessemer Division
(CC-02-423.60)
WISE, Judge.
The appellant, Johnathan Long, appeals from the circuit
court's denial of his petition for postconviction relief filed
pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his
September 2003 guilty-plea convictions for kidnapping in the
CR-06-1485
first degree, sodomy in the first degree, and robbery in the
first
degree,
and
his
resulting
sentences
of
20
years'
imprisonment for each conviction, to be served concurrently.
On June 23, 2006, this Court affirmed Long's convictions and
sentences by an unpublished memorandum. Long v. State (No. CR05-0094), ___ So. 2d ___ (Ala.Crim.App. 2006) (table).1
1
In affirming Long's conviction, this Court stated:
"Before entering his pleas, Long reserved the right
to appeal the trial court's order denying his motion
to dismiss the charges. Long argued in support of
his motion to dismiss that critical evidence had
been destroyed and was, therefore, unavailable for
additional testing.
Accordingly, the sole issue
presented on appeal is whether the trial court
abused its discretion in denying Long's motion to
dismiss the indictments. See Hunter v. State, 867
So. 2d 361, 362 (Ala. Crim. App. 2003) ('[w]hether
a trial court's denial of a motion to dismiss an
indictment
was
error
is
reviewed
under
an
abuse-of-discretion standard of review').
"The record reveals the following pertinent
facts. On November 4, 2001, the victim, L.D.M., was
kidnapped, sexually assaulted, and robbed by three
black males.
Among other pieces of evidence
gathered by the State, a DNA sample was taken from
the victim's blue jeans and a sock. The State sent
that sample to the Alabama Department of Forensic
Sciences ('DFS') for testing, along with a blood
sample from Long.
DFS received the samples on
November 19, 2001, and December 6, 2001, and
released its report on August 6, 2002, in which it
concluded that DNA found on the victim's jeans and
sock matched Long's DNA.
2
A
CR-06-1485
"On March 20, 2003, the trial court, on motion
by Long, approved up to $2,500 for an independent
test of the samples to be made and ordered the
Bessemer Police Department to provide the evidence
to the UAB School of Medicine's DNA testing lab.
UAB received the victim's jeans and sock on March
28, 2003; it received Long's blood sample on April
25, 2003. On May 7, 2003, UAB released its report
in which it also concluded that Long could not be
excluded as a possible contributor to the sample
taken from the victim's sock and that the DNA found
on the victim's jeans matched Long's DNA.
"On September 23, 2003, Long entered conditional
guilty pleas to first-degree robbery, first-degree
kidnapping, and first-degree sodomy. Sentencing was
deferred pending Long's cooperation with the State
in prosecuting the other men involved in the assault
and a recommendation by the State as to the
sentences. On November 9, 2004, UAB faxed a copy of
a form to Long's attorney, Garry Abbott, seeking
permission
to
destroy
the
evidence
in
its
possession. Abbott executed that form and returned
it to UAB on November 9, 2004, assuming, according
to the trial court, that he was agreeing only to the
destruction of the blood sample that had been
provided by Long. On June 20, 2005, Long filed a
motion seeking to enforce an agreement that he said
he had with the State that he would receive 20-year
split sentences in exchange for his cooperation.
The trial court denied that motion, but set aside
his guilty pleas and set the case for trial.
"At a pre-trial hearing on September 13, 2005,
Long, who was then represented by new counsel, moved
to dismiss the charges, arguing that UAB's
destruction of the evidence precluded him from
having the DNA sample from the victim's jeans and
sock tested again by an independent lab.
Long
argued that the lab at UAB
had lost its
3
CR-06-1485
accreditation at the time it analyzed the sample and
that he was prejudiced by his inability to have the
sample independently tested by an accredited lab.
Long also argued that he was prejudiced by the fact
that his previous attorney, Abbott, had a conflict
of interest, in that he might be called as a witness
by the State to testify that he had approved the
destruction of the evidence. The State argued that
it did not order the destruction of the evidence and
that it was not culpable in connection with the
destruction of the evidence.
No evidence was
presented as to the accreditation status of UAB's
DNA lab at the time it analyzed the DNA sample taken
from the victim's clothes.
Although it expressed
concern over the destruction of the evidence, the
trial court denied Long's motion to dismiss and
accepted Long's guilty pleas.
"For this Court to find a violation of due
process because the evidence was destroyed by UAB,
we must consider 1) the culpability of the State, 2)
the materiality of the destroyed evidence, and 3)
the sufficiency of the other evidence, in order to
determine
whether
Long
suffered
substantial
prejudice. See, e.g., Grimsley v. State, 678 So. 2d
1197 (Ala. Crim. App. 1996), discussing Ex parte
Gingo, 605 So. 2d 1237 (Ala. 1992). The record in
the present case indicates that the State was in no
way responsible for the destruction of the evidence.
Long's attorney authorized UAB to destroy the DNA
sample taken from the victim's clothes.
Although
UAB had been in possession of the evidence for over
a year and a half when it received authorization
from Abbott to destroy the evidence on November 9,
2004, Long had entered conditional guilty pleas on
September 23, 2003, based, at least in part, on
UAB's test results that implicated him in the
assault on the victim. As the trial court noted,
the State could have taken steps to retrieve or
secure the evidence after UAB released its report;
4
CR-06-1485
however, based on our examination of the record, we
find no bad faith on the part of the State and no
culpability that would weigh heavily in Long's
favor.
Furthermore, Long received from UAB an
independent analysis of the DNA sample taken from
the victim's clothes. The results of that analysis
were not favorable to Long. Although Long's counsel
asserted that UAB had lost its accreditation at the
time it performed its analysis, no evidence was
introduced to substantiate that assertion.
Thus,
because he offered no evidence indicating that the
UAB analysis was unreliable, Long did not establish
that the destroyed evidence was material to his
defense. For all that appears in the record, Long
asked for, and received, an independent analysis of
the evidence. Finally, although there was no trial,
the record suggests that the State could have
submitted other evidence of guilt at trial.
The
record indicates that the victim was able to give
the police a physical description of each of the men
who assaulted her. Witnesses also saw Long at one
of the locations where the assault occurred, i.e.,
an abandoned trailer, and items relevant to the
case, i.e., a walkie talkie and a towel 'from a
motel'(R. 4), were found in Long's vehicle when he
was arrested.
The victim reported to the police
that her attackers had communicated with walkie
talkies. The towel may have come from the Marriott
Hotel in Homewood, where the assault on the victim
apparently began.
In addition, Long made a
statement to the police 'that he didn't hurt the
women [sic] and asked what was in it for him if he
told who else was involved.' (R. 4.)
"Based on our review of the record, we conclude
that the State was not culpable in the destruction
of the evidence and that the evidence destroyed was
not so critical to the defense as to deny Long due
process and make his convictions fundamentally
unfair.
5
CR-06-1485
certificate of judgment was issued on August 2, 2006.
On March 2, 2007, Long filed this, his first, Rule 32
petition, alleging: (1) that his guilty pleas were involuntary
because, he says, he was coerced by counsel to enter the
pleas; (2) that the trial court was without jurisdiction to
render judgment or to impose his sentence because, he says, he
was never indicted by a grand jury, his indictments were void,
and the victim never filed any complaints or appeared before
a grand jury; (3) that the trial court abused its discretion
when it allowed him to plead guilty to charges for which there
was insufficient evidence to support a conviction; (4) that
his first trial counsel was ineffective because he allegedly
failed to challenge the indictment, was complicit in his
denial
of
a
speedy
trial,
allowed
DNA
evidence
to
be
destroyed, and conducted no pretrial investigation; (5) that
his second trial counsel was ineffective because he allegedly
"As for Long's argument that he was denied
conflict-free counsel because Abbott had authorized
UAB to destroy the evidence, the record indicates
that Long was not represented by Abbott when he
entered his guilty pleas on September 13, 2005.
Long had new counsel at that stage of the
proceedings. We find no merit in this argument."
.
6
CR-06-1485
failed to ask for a jury trial and coerced him into pleading
guilty; and (6) that his appellate counsel was ineffective for
failing to file a motion to withdraw his guilty pleas, a
motion for new trial, and a writ of certiorari with the
Alabama Supreme Court. On April 19, 2007, the State filed its
response and a motion to dismiss, arguing that Long's petition
was both procedurally barred and without merit.
2007,
the
circuit
court
issued
an
order
On May 14,
denying
Long's
petition stating:
"[T]he Court having reviewed [Long's] Rule 32
Petition and the response thereto provided by the
District Attorney's Office on behalf of the State of
Alabama, finds that the petition is without merit.
The petition is therefore denied and dismissed."
(C. 3.)
On
This appeal followed.
appeal,
Long
reasserts
the
claims
raised
in
his
petition to the circuit court.
Long
raises
multiple
claims
in
his
first
Rule
32
petition, including multiple claims of ineffective assistance
of trial counsel.
Long's contentions that his counsel was
ineffective appear to satisfy the specificity requirements set
forth in Rules 32.3 and 32.6(b), Ala.R.Crim.P. Heidelberg v.
State, 965 So. 2d 799, 803 (Ala.Crim.App. 2006). Because Long
7
CR-06-1485
presented allegations that, if true, would entitle him to
relief, the circuit court erred in summarily dismissing this
petition. Ex parte Boatwright, 471 So. 2d 1257 (Ala. 1985).
We recognize the heavy caseload under which the trial
courts of this State toil, and we are aware that Rule 32
petitions add to that already heavy burden.
However, in this
case, we are left with a petition that articulated at least
some claims that were minimally sufficient grounds to warrant
a response and an order stating no grounds for the denial of
the petition.
This case is remanded to the circuit court with the
instructions
that
the
court
enter
specifically addresses Long's claims.
court
deem
it
necessary
to
hold
an
a
new
order
that
Should the circuit
evidentiary
hearing
addressing Long's claims, the court's return to remand shall
include a transcript of those proceedings. We note that Rule
32.9(d), Ala.R.Crim.P., requires the trial court to "make
specific findings of fact relating to each material issue of
fact presented." See also Ex parte Walker, 652 So. 2d 198
(Ala. 1994); and Smith v. State, 665 So. 2d 954 (Ala.Crim.App.
1994).
8
CR-06-1485
Finally, we note that
"'if the court finds that a particular
allegation fails to meet the requirements
of
specificity
of
Rule
32.6(b),
we
encourage the court to so note with
particularity in its written findings. It
is to do likewise if it finds that a
particular allegation fails to state a
claim or to present any material issue of
fact or law that would entitle [the
petitioner] to relief. In other words, the
court's written findings are to address
individually each claim not precluded by
Rule 32.2.'
"Harper v. State, 676 So. 2d 949, 950 (Ala.Crim.App.
1995), aff'd on return to remand, 698 So. 2d 796
(Ala.Crim.App. 1996) (table). Finally, if the court's
findings are based on its personal knowledge of [the
petitioner's] guilty-plea proceedings, then the order
should so state. See Sheats v. State, 556 So. 2d
1094, 1095 (Ala.Crim.App. 1989)."
Dedeaux v. State, [Ms. CR-04-0792, Dec. 23, 2005] ___ So. 2d
___,
___
(Ala.Crim.App.
2005).
These
findings
should
be
contained in the circuit court's new order ruling on Long's
petition. The trial court shall take all necessary action to
see that the circuit clerk makes due return to this Court at
the earliest possible time and within 56 days of the release
of this opinion.
REMANDED WITH DIRECTIONS.
9
CR-06-1485
Baschab, P.J., and McMillan, J., concur.
concurs in the result.
Welch, J., dissents.
10
Shaw, J.,
