source: Caselaw Access Project

author: HOOPER, Chief Justice. SEE, Justice

license: Public Domain

text:
    Ex parte Andy Dwight PIERCE. (Re: Andy Dwight Pierce v. State).
    1981270.
    Supreme Court of Alabama.
    Sept. 1, 2000.

      Ellen L. Wiesner of Cannon & Dunphy, S.C., Brookfield, Wisconsin, for petitioner.
    William H. Pryor, Jr., atty. gen.; and George A. Martin, Jr., and Beth Jackson Hughes, asst, attys. gen., for respondent.
    Thomas W. Sorrells, Montgomery, for amicus curiae Alabama District Attorneys Association.

       Justice Brown was a member of the Court of Criminal Appeals when that Court considered this case.

   On Application For Rehearing

HOOPER, Chief Justice.

The opinion of May 26, 2000, is withdrawn and the following is substituted therefor.

On January 26, 1989, Andy Dwight Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. His conviction was affirmed on appeal, but the Court of Criminal Appeals remanded the case for resentencing because improper information had been admitted during the sentencing phase of the trial. Pierce v. State, 576 So.2d 236 (Ala.Crim.App.1990). Pierce was resentenced to death, on April 15, 1991. On return to the remand, the Court of Criminal Appeals ordered a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory strikes to exclude blacks from the jury venire. Pierce v. State, 586 So.2d 1005 (Ala.Crim.App.1991). On return to the second remand, the Court of Criminal Appeals held that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced Pierce to death. Pierce v. State, 612 So.2d 514 (Ala.Crim.App.1992). This Court affirmed the conviction and the resentencing, Ex parte Pierce, 612 So.2d 516 (Ala.1992), and the United States Supreme Court denied cer-tiorari review, Pierce v. Alabama, 510 U.S. 872, 114 S.Ct. 201, 126 L.Ed.2d 158 (1993). The Court of Criminal Appeals issued a certificate of judgment on February 3, 1993.

On December 2, 1994, Pierce filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. The trial court dismissed several claims, finding that they were procedurally barred by Rule 32.2(a)(2), (3), (4), and (5), Ala. R.Crim. P. After conducting an evidentiary hearing, the trial court entered an order denying Pierce relief on all of his remaining claims. The Court of Criminal Appeals affirmed. Pierce v. State, 851 So.2d 558 (Ala.Crim.App.1999).

This Court granted Pierce’s petition for certiorari review, to examine one of Pierce’s four claims — that Sheriff Douglas Whittle had been a key witness for the prosecution and that he had improperly had close and continual contact with the jury throughout the trial. The Court of Criminal Appeals held that this issue was proeedurally barred by Rulé 32.2(a)(3) and (5) because it was not raised at trial or on direct appeal, and it further held the claim to be without merit. We reverse and remand.

I.

The United States Supreme Court in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), held that the defendant’s right to a fair trial was violated by the fact that two deputy sheriffs who were key witnesses for the prosecution had charge of the jury during the defendant’s three-day trial. The Supreme Court stated: “ ‘In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.’ ” 379 U.S. at 471-72, 85 S.Ct. 546 (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). In Turner, the jurors were sequestered during a three-day trial. The deputy sheriffs “drove the jurors to a restaurant for each meal, and to their lodgings each night [and] ate with them, conversed with them, and did errands for them.” 379 U.S. at 468, 85 S.Ct. 546. The Supreme Court held that this arrangement constituted a close and continual association between the deputy sheriffs and the jurors.

Pierce contends that his due-process rights, including his right to a fair trial, were violated because, he says, Sheriff Whittle, who Pierce claims was a material witness, had substantial association with the jurors during the trial. The Court of Criminal Appeals found that Pierce’s claim was without merit because, it said 1) the facts did not support Pierce’s claim that Sheriff Whittle had improper close and continual association with the jurors; 2) the record does not show that Sheriff Whittle was a key witness; and 3) Pierce presented no evidence indicating that he was actually prejudiced by any contacts between Sheriff Whittle and the jury. Judge Cobb wrote a concurring opinion in which she agreed with the State’s argument that Pierce did not properly raise this issue at trial or on appeal; however, she disagreed with the rest of the main opinion.

The jurors in Pierce’s case were sequestered during the trial, which lasted four days for the guilt phase and one day for the sentencing phase. The jurors stayed at the Comfort Inn motel in Enterprise, which is 20 miles from the Geneva County Courthouse. The jurors ate lunch in Geneva at the Chicken Box restaurant and ate breakfast and supper in Enterprise at the Shoney’s restaurant. At the Rule 32 evidentiary hearing held by the trial court, more than six years after Pierce’s trial, four witnesses testified as to the extent of Sheriff Whittle’s contact with the jury. The Court of Criminal Appeals found that the testimony was conflicting and, thus, that the trial court’s determination as to the credibility of the evidence must be given great deference. However, we do not find the testimony to be conflicting. We find undisputed evidence indicating the sheriff had close and continual contact with the jury.

Dot Kirkland, the administrative assistant in the sheriffs office, was appointed as a bailiff and was responsible for the jury. Kirkland unequivocally testified that three vehicles were used to transport the jurors during the trial and that she drove her personal van while Sheriff Whittle and Chief Deputy Tice each drove a patrol car. Kirkland further testified that she, the deputy sheriff, and Sheriff Whittle accompanied the jurors to lunch.

Gerald Butler, the foreman of the jury, testified that officials of the Sheriffs Department transported the jurors by cars to their motel; however, Butler did not remember if Sheriff Whittle drove a car. Butler had previously executed an affidavit stating that Sheriff Whittle would “come up to Enterprise in the mornings to make sure everything went smoothly” and that “[t]he State provided everything we needed and the Deputies and Sheriff did a good job.” Robert Owens, a juror, testified that he did not remember Sheriff Whittle’s driving a car to the motel in Enterprise, but remembered that Sheriff Whittle was sometimes with the jurors at lunch. Keith Brown, the third juror who testified about the jury’s contact with Sheriff Whittle, testified that he remembered that Sheriff Whittle went back and forth to Enterprise with the jurors, and Brown thought that Sheriff Whittle drove one of the cars. Brown also said he remembered that Sheriff Whittle went with the jurors to eat lunch.

This testimony does not appear to be conflicting. Each of the witnesses, more than six years after the trial, remembered the sheriffs having contact with the jury. Kirkland, who was in charge of the jury and who would have the most knowledge of the lodging and meal accommodations for the jury, was clear in her testimony that Sheriff Whittle drove one of the cars used to transport the jurors to their motel in Enterprise and that Sheriff Whittle accompanied the jurors to lunch each day. The testimony of the three jurors who testified at the evidentiary hearing supports Kirkland’s testimony, even if these three jurors did not ride in a car driven by Sheriff Whittle. The evidence shows that Sheriff Whittle drove jurors in a patrol car 20 miles each way, to and from their motel in Enterprise, each day during the five-day trial. The evidence also indicates that Sheriff Whittle ate lunch with the jurors each day.

The Court of Criminal Appeals states that all of the evidence indicates that Sheriff Whittle did not discuss the facts of the case with the jurors. However, Turner makes it clear that the question whether a witness had close and continual contact with the jury is not dependent upon whether the witness had conversations with the jurors regarding the case:

“It is true that at the time they testified in open court Rispone and Simmons [deputy sheriffs] told the trial judge that they had not talked to the jurors about the case itself. But there is nothing to show what the two deputies discussed in their conversations with the jurors thereafter. And even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.”

379 U.S. at 473, 85 S.Ct. 546.

In State v. Kelley, 192 W.Va. 124, 451 S.E.2d 425 (1994), the Supreme Court of Appeals of West Virginia held that there was “a reasonable probability that the violation in this case contributed to the conviction,” even though the sheriff, who was also a witness, acted simply as a bailiff by bringing the jury in and out of the courtroom and transporting messages between the jury and the court. 192 W.Va. at 130, 451 S.E.2d at 431. In Radford v. State, 263 Ga. 47, 49, 426 S.E.2d 868, 870 (1993), the Supreme Court of Georgia held that a deputy had had “substantial and continuing contact with and authority over” the jurors, even though he did not discuss the case itself with the jurors. In Radford, the deputy’s contact consisted of riding with the jurors on the bus that transported them to and from their motel and to meals, eating meals with them, and standing guard at the motel while the jurors congregated.

Precedent from the Court of Criminal Appeals also supports our conclusion that Sheriff Whittle did have a constitutionally unacceptable level of contact with the jury in this case. In Yelton v. State, 50 Ala.App. 168, 170-71, 277 So.2d 912, 915 (Crim.App.1973), the Court of Criminal Appeals held:

“Even though the sheriffs participation in the instant case did not approach the prohibited [behavior] in Turner, ... the error lies in allowing any association of the jury with a witness who has testified at the trial. It would undermine the basic guarantees of a jury trial to permit this kind of commingling, between jurors, and any other witness who was in a position of authority. A sheriff should not be placed in a situation where his integrity as a chief law enforcement officer of the county, and as an officer of the court, will be questioned. His testimony should come from the witness stand, unencumbered by any prejudicial suspicions which might occur when he is placed in the immediate presence of the jury.”

In Miles v. State, 261 Ala. 670, 75 So.2d 479 (1954), this Court held that a defendant was entitled to a new trial because the sheriff, a deputy sheriff, and a highway patrol officer had walked with the jury to a cafe, had eaten at the same table with the jury, and had walked back to the courthouse with the jury. The amount of contact between the law-enforcement officials and the jury in Miles is not nearly as great as that in the present case, yet this Court held that the possibility of influence exerted on the jury by those three men required a new trial. In Miles, this Court also stated that there was testimony indicating that the officers and the jury had not engaged in any conversation regarding the case; however, that fact was not dis-positive.

We conclude that Pierce presented evidence indicating that Sheriff Whittle had a close and continual contact with the jury, and we conclude that that evidence was sufficient to show a violation of the principle of Turner v. Louisiana.

The Court of Criminal Appeals also held that the Turner principle did not apply because, it said, Pierce did not prove that Sheriff Whittle was a key witness in the case. That court based its conclusion on the proposition that Sheriff Whittle’s testimony repeated the testimony of other witnesses and that, while Sheriff Whittle testified regarding a statement Pierce had made in the sheriffs presence, Pierce’s own testimony at trial was consistent with his previous statements to the police and, thus, the sheriffs testimony was merely cumulative.

We conclude that Sheriff Whittle was in fact a key witness for the State. He was the investigating officer in charge of the case, and he testified as to what Pierce told him during an interrogation; his involvement was similar to the involvement of the sheriff in Yelton. In Yelton, the sheriff gave testimony concerning evidence he found during an investigation at the scene of the crime. He also testified as to a statement made by the defendant. Upon completion of the trial, the sheriff accompanied the jurors and talked with them during supper. The Court of Criminal Appeals stated:

“Although the sheriffs testimony was confined to the evidence found at the scene, his presence with the jury after the trial could have emphasized his testimony and the part he played in the trial.
“Any person holding the office of sheriff is not only recognized as the symbol of that county’s law, but is the law to his constituents when he speaks. It is for this reason that the testimony of such an officer may influence a jury’s verdict, and the impact of his presence is increased considerably whenever he is brought into such close company with the jurors.”

50 Ala.App. at 170, 277 So.2d at 914.

Sheriff Whittle’s testimony was not merely cumulative. He recounted the interrogation of Pierce, which occurred in the sheriffs own firing quarters at the jail. The sheriff testified about Pierce’s story regarding a man Pierce said was named Jim, who, Pierce said, forced Pierce at gunpoint to take the victim’s car and who, Pierce said, killed the victim. Pierce testified at trial to these same statements. However, Sheriff Whittle also testified that in his opinion Pierce was lying when he made those statements. Defense counsel tried to elicit from the sheriff testimony indicating that Pierce was cooperative while he was in custody, but the sheriff stated that Pierce was not cooperative during his interrogation because, the sheriff said, he refused to tell the truth. The sheriffs testimony as to Pierce’s demeanor during his interrogation also implied that Pierce was lying. Sheriff Whittle further testified that Pierce was the “right man” to arrest for the murder.

This testimony was not cumulative as to that given by other witnesses, and it certainly qualifies as key testimony against Pierce. The prosecution’s case was not overwhelming. No physical evidence at the scene connected Pierce to the murder. The police found no fingerprints or hairs belonging to Pierce in the victim’s house. They also did not find any of the victim’s blood, which had been splattered on the wall, on any of Pierce’s clothing. Pierce’s defense was that someone else committed the crime. The sheriff specifically stated that this defense was a lie. The sheriffs position as the county’s head law-enforcement officer makes his testimony potentially more persuasive than that of other witnesses, particularly when he is also serving as the caretaker of the jury.

The Court of Criminal Appeals also found that Pierce had not shown that he suffered any actual injury by Sheriff Whittle’s alleged improper contact with the jury. Three jurors testified that the sheriffs presence, actions, and conversations did not affect their deliberations. However, Pierce need not prove he suffered actual prejudice. As the United States Supreme Court stated in Turner v. Louisiana, 379 U.S. at 473, 85 S.Ct. 546, “it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and ... key witnesses for the prosecution.” The Court further stated:

“It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that [the witnesses] played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial. And Turner’s fate depended upon how much confidence the jury placed in these two witnesses.”

Id. at 474, 85 S.Ct. 546.

The Court of Criminal Appeals, in stating that Pierce must prove actual prejudice in order to be entitled to relief under Turner, relied on the dissent in Turner. However, based .on the main opinion in Turner, we conclude that close and continual contact with the jury by a sheriff who is a key witness for the prosecution is necessarily prejudicial to the defendant. Thus, we conclude that the defendant does not have to show actual prejudice. This Court had written the following even before the United States Supreme Court decided Turner:

‘The association of this witness ... in control of the jury during the trial and its deliberations, furnished opportunity for ingratiating himself in the minds of the individual jurors, and for unduly emphasizing his testimony given in that case, causing it to affect and enter into the verdict rendered. His constant presence with the jury no doubt had bearing upon the case, though he and the jurors testified that he had not spoken to any individual juror about the evidence in the case or about the defendant. The injury which resulted was no doubt unconsciously brought about, but was none the less real or effective.’ ”

Miles v. State, 261 Ala. at 672, 75 So.2d at 481 (quoting earlier cases). Our conclusion that Sheriff Whittle was a key witness who had improper close and continual contact with the jury is consistent with previous holdings of this Court, as well as holdings in other jurisdictions.

II.

The decisive issue in this case is whether Pierce’s claim is procedurally barred under Rule 32.2(a)(3) and (5), Ala.R.Crim.P.

Pierce’s claim states a proper ground for relief under Rule 32.1(a) because it states a constitutional violation that would require a new trial. To be entitled to that relief, however, Pierce must avoid the pre-clusive effect of Rule 32.2(a)(3) and (5); those provisions bar a defendant from presenting in a Rule 32 postconviction petition a claim that could have been raised at trial or on direct appeal. Rule 32.1 provides:

“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
“(b) The court was without jurisdiction to render judgment or to impose sentence.
“(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.
“(d) Petitioner is being held in custody after petitioner’s sentence has expired.
“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“(1) The facts relied upon were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received.
“(f) The petitioner failed to appeal within the prescribed time and that failure was without fault on petitioner’s part.”

Rule 32.2 provides:

“(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
“(1) Which may still be raised on direct appeal under the Alabama Rules of Appellate Procedure or by post-trial motion under Rule 24; or
“(2) Which was raised or addressed at trial; or
“(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
“(4) Which was raised or addressed on appeal or in any previous collateral proceeding; or
“(5) Which "could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”

The Court of Criminal Appeals stated that Pierce had failed to prove that his evidence regarding the sheriffs improper contact with the jury constituted newly discovered evidence; therefore, it held, the trial court correctly held this claim to be procedurally barred on the basis that it could have been raised at trial or on direct appeal. The Court of Criminal Appeals held that Pierce did not satisfy the following three of the five elements required by Rule 32.1(e), Ala. R.Crim. P.: 1) that the information was not known and could not have been discovered at the time of trial or sentencing or in time to raise it in a post-trial motion; 2) that if the information “had been known at the time of trial or of sentencing, the result probably would have been different”; and 3) that “[t]he facts establish that the [defendant] is innocent of the crime” or that he “should not have received the sentence [he] received.”

However, Pierce was not required to prove that this information meets the elements of “newly discovered material facts” under Rule 32.1(e). While the information about Sheriff Whittle’s contacts with the jury may be “newly discovered,” Pierce does not seek relief under Rule 32.1(e). Pierce does not contend that “[n]ewly discovered material facts exist which require that the conviction or sentence be vacated by the court.” Rule 32.1(e). Instead, Pierce’s claim fits under Rule 32.1(a): “The constitution of the United States or of the State of Alabama requires a new trial....” Rule 32.1(a) states a ground for relief distinct from that stated in Rule 32.1(e). If every defendant had to prove that the facts on which he relies for posteonviction relief satisfy the elements of “newly discovered material facts” set out by Rule 32.1(e), then constitutional violations could rarely be raised in a Rule 32 petition, and Rule 32.1(a) would be superfluous for all cases except those in which the defendant could prove innocence. There is a place for this Court to review constitutional violations that could not be discovered by the date of trial or in time to be raised in a direct appeal, even if the defendant is guilty of the crime charged. Furthermore, the application of the requirements of Rule 82.1(e) in cases like Pierce’s would impose a nearly impossible standard on a defendant filing a Rule 82 petition. A defendant could rarely, if ever, establish, through the same facts tending to prove that the jury was prejudiced or improperly influenced, that he is innocent of the crime charged. Yet, jury prejudice or improper influence is an important issue for this Court to review.

Rule 32.1(a) is the same provision that allows a defendant to raise an ineffective-assistance-of-counsel claim in a postconviction proceeding. Yet, this Court has never required a defendant alleging ineffective assistance of counsel to meet the elements stated in Rule 32.1(e), particularly the Rule 32.1(e)(5) requirement of showing facts establishing that the defendant is innocent of the crime. Almost never could a defendant meet the requirement of showing that his evidence proving ineffective assistance also proves his innocence.

Although Rule 32.1(e) does not preclude Pierce’s claim, Rule 32.2(a)(3) and (5) would preclude Pierce’s claim if it could have been raised at trial or on appeal. Pierce argues that his trial counsel could not have known about the sheriffs improper close and continual contact with the jury. Thus, Pierce argues, 1) counsel had no basis for objecting at trial to that contact and 2) because counsel could not object at trial, the record contained no basis upon which to raise the issue on direct appeal from his conviction. The trial judge made comments during the trial indicating that the sheriff would be making arrangements for the jury’s hotel stay and for their meals. Specifically, while explaining the sequestration process to the jury, the trial court stated: “Sheriff, where are they staying?” Sheriff Whittle replied: “They are staying at Enterprise at the Comfort Inn.” The trial court then stated: “The sheriff will be able to explain that to you and arrangements will be made for you to get to Enterprise to the Comfort Inn.” During the trial, the court stated to the jury: “If you will go back with the bailiff, the sheriff will make arrangements for you to get to the motel.” The trial court also explained the arrangements for lunch: “If the jury will go back with the bailiff, the Sheriffs Department will make arrangements for you to eat lunch.”

The Court of Criminal Appeals held that Pierce should have objected after hearing these statements. However, we do not think these comments were enough to put trial counsel on notice that the sheriff would personally be driving the jurors to their hotel and would be attending meals with them. Pursuant to Ala.Code 1975, § 12-16-10, “it is the duty of the sheriff ... to provide for the jurors and the bailiffs or deputy sheriffs in charge of or attending said jury suitable lodging and meals.” The comments made by the trial court do nothing more than indicate that the sheriff was responsible for ensuring that these duties were carried out; they do not indicate that the sheriff himself would personally perform them.

The State argues that in order for Pierce to prove that he could not have raised the issue at trial or on direct appeal (as required by Rule 32.2(a)(3) and (5)), he must prove the elements of “newly discovered material facts” stated in Rule 32.1(e), including the requirement that the facts prove his innocence. We disagree.

As previously stated, because Pierce’s claim falls under Rule 32.1(a), rather than Rule 32.1(e), the elements of Rule 32.1(e) do not apply. A requirement that a defendant prove those elements would create a nearly impossible standard. Instead, Pierce need only show that his claim could not have been raised at trial or on direct appeal.

The State contends that Pierce failed to carry his burden of proving that this claim was not procedurally barred. The State argues that at the evidentiary hearing Pierce failed to present evidence indicating that his trial counsel did not know these facts at trial and could not have discovered them in time to raise an objection during trial, in a posttrial motion, or on direct appeal.

This case is in an unusual procedural posture. The record indicates that after Pierce filed his Rule 32 petition, the State filed an answer and a “Motion for Partial Dismissal.” Pierce’s claim regarding improper juror contact with witnesses was encompassed in “Claim F” of the petition. In the “Motion for Partial Dismissal,” the State argued that Claim F, which the State described as “juror misconduct” and which encompassed other claims involving the jurors, was procedurally barred by Rule 32.2(a)(2), (a)(3), and (a)(5). The record indicates that the court held a hearing on the “Motion for Partial Dismissal.” This hearing was not transcribed and was the subject of a “Motion to Supplement the Record” filed by Pierce. According to the record, that hearing was tape recorded, but the tape recording could not be found.

Pierce and the State entered into a stipulation of facts; that stipulation indicates that at the hearing on the “Motion for Partial Dismissal,” the State argued: “[Cjertain claims in the petition should be dismissed pursuant to the procedural bars found in Rule 32.2(a) of the Alabama Rules of Criminal Procedure. The specific claims and the procedural bars that the State of Alabama argued should apply are set forth in the Motion for Partial Dismissal.” According to the stipulation of facts, Pierce’s counsel “then argued against the State’s Motion for Partial Dismissal.” The trial court entered an order dated February 13, 1996, stating that it had considered the State’s “Motion for Partial Dismissal,” and ordering:

“1. Claim A, Claim B, Claim D, Claim H, Claim I and Claim J were raised or could have been raised at trial or on Motion for New Trial or on appeal. These claims are dismissed or procedurally barred pursuant to Rule 32.2(A) [sic] Alabama Rules of Criminal Procedure.”
“2. An evidentiary [hearing] will be held on the remaining claims.”

Pierce’s claim of improper jury contact was one of the “remaining claims” the trial judge mentioned in paragraph 2 of his order. Thus, it appears from the record that the trial court considered arguments as to whether Pierce’s claim regarding the sheriffs improper contact with the jury was procedurally barred by Rule 32.2(a) and determined that it was not. At the subsequent Rule 32 evidentiary hearing, Pierce presented evidence only on the merits of the claim and did not present evidence regarding whether the claim could have been raised at trial or on appeal. Pierce contends that that issue had been argued and decided at the hearing on the State’s “Motion for Partial Dismissal.” However, after the Rule 32 evidentiary hearing, the trial court entered an order holding that Pierce’s claim regarding the sheriffs improper contact with the jury was in fact procedurally barred because it could have been raised at trial and on appeal but was not.

The procedural posture of this case causes us to ask the following questions: Did the trial court address Pierce’s procedural compliance with respect to this particular claim? If so, why did it not dismiss this claim along with the other claims? If the trial court did not address the procedural aspect, why would the trial judge hold a hearing on the substance of the claim, with witnesses being called, only to later rule that the claim was procedurally barred? Did the trial judge consider the hearing to be an examination of the procedural posture of this case? Would Pierce have known that he should present evidence as to the procedural status of this particular claim when the trial judge had, to all appearances, finalized the procedural issues with respect to that claim, as it had with respect to all other claims? Did the trial judge, in fact, determine that Pierce’s trial counsel should have known, or did know, that the sheriff would have extensive contact with the jury? This Court would like to know whether the trial court would hold this claim barred after Pierce had been given notice that he must present evidence as to his procedural compliance. If he can show to the trial court that he complied procedurally with respect to this particular claim, this Court would then like to know whether the trial court in fact finds that Pierce’s attorney did know or should have known of the sheriffs contact with the jury during the trial. Pierce contends that he could not have raised the issue at trial or on appeal because his trial counsel could not have known who was accompanying the jurors to their hotel and to meals. The sheriff did not act as the official bailiff in the courtroom. The official bailiffs did not act as witnesses in the case and would have been, therefore, unobjectionable as escorts for the jury. The sheriff attended to the jurors outside the courtroom, where trial counsel had no opportunity to view his close and continual contact.

When Pierce filed his Rule 32 petition, he was relying on the Court of Criminal Appeals’ opinion in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992), which held that a Rule 32 petitioner’s claim alleging a juror’s misconduct in fading to truthfully answer questions on voir dire examination was not procedurally barred by Rule 32.2, where defense counsel was not aware of the juror’s failure to truthfully answer until one week before the court conducted the evidentiary hearing on the defendant’s Rule 32 petition. In Freeman, the defendant’s counsel uncovered the information during juror interviews. Thus, the Court of Criminal Appeals held that the. issue was not procedurally barred because “the fact that the juror had been a policeman [that fact was the information withheld] was not known at the time of trial or at the time of direct appeal.” 605 So.2d at 1259.

Similarly, in Pierce’s case, during post-conviction investigation, Pierce’s current counsel interviewed jurors and discovered the improper contact Sheriff Whittle had had with the jurors. Based on the Court of Criminal Appeals’ opinion in Freeman, Pierce’s claim was cognizable as long as he established 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. Pierce argued to the trial court, in his response to the State’s contention that the issue was procedurally barred, that, on the authority of Freeman, the issue could not be barred, because the information was not available to trial counsel and could not have been obtained at the time of the trial. However, what is unclear from the record is whether Pierce met his burden under Rule 32.3 of disproving the existence of the ground of preclusion by a preponderance of the evidence. Because the hearing at which the trial court heard evidence regarding the grounds of preclusion was not transcribed, we cannot say whether this burden was met. The trial court’s order following that hearing indicates that Pierce had proved that his claim was not procedurally barred. The trial court’s order following the Rule 32 evidentiary hearing indicates otherwise. The ambiguity of these two orders creates a question in this Court’s mind as to whether Pierce had the opportunity to adequately present evidence showing he had met his burden under Rule 32.3.

For these reasons, we remand this case for the Court of Criminal Appeals to remand to the trial court for an evidentiary hearing on the question whether Pierce’s claim could have been raised at trial or on appeal and is thus barred pursuant to Rule 32.2(a)(3) or (a)(5). The trial court shall file a return to the remand within 60 days; the return shall include a transcript of the proceedings conducted and the trial court’s findings of fact and conclusions of law. The Court of Criminal Appeals shall transmit that return to this Court.

III.

Finally, Pierce argues, in the alternative, that his trial counsel was ineffective for not objecting to the sheriffs close and continual contact with the jury. From the record before us, it does not appear that Pierce’s trial counsel had information from which he should have known the extent of the sheriffs contact with the jury. The simple fact that counsel knew that the Sheriffs Department was responsible, by statute and at the direction of the trial court, for “making arrangements” for the jury’s needs does not mean that counsel should have known that the sheriff would be personally driving the jurors and accompanying them to lunch. However, the evidentiary hearing held on remand should indicate whether trial counsel knew or should have known about the sheriffs contact with the jury. Therefore, we do not foreclose the possibility that Pierce may have a cognizable claim for ineffective assistance of counsel.

APPLICATION GRANTED; OPINION OF MAY 26, 2000, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH INSTRUCTIONS.

HOUSTON, COOK, LYONS, JOHNSTONE, and ENGLAND, JJ., concur.

MADDOX, J., concurs in the result.

SEE, J., concurs in granting the application for rehearing; and concurs in part, concurs in the result in part, and dissents in part.

BROWN, J., recuses herself.

SEE, Justice

(concurring in the order granting the application for rehearing; concurring in part; concurring in the result in part; and dissenting in part).

I concur in the order granting the application for rehearing. However, I disagree with the conclusion that “Sheriff Whittle was a key witness who had improper close and continual contact with the jury.” 851 So.2d at 612. Thus, I dissent from Part I. I concur in Part II., and I concur in the result to remand the case with instructions.

      . After the trial court held its hearing on Pierce’s Rule 32 petition, the Court of Criminal Appeals overruled its holding in Freeman. It did that in Brown v. State, 807 So.2d 1 (Ala.Crim.App.1999), a case in which this Court has granted certiorari review (docket no. 1990344).


author: BASCHAB, Judge.

text:
    Andy Dwight PIERCE v. STATE.
    CR-96-1668.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 2000.
    Ellen Louise Wiesner, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen.; and Jeremy W. Armstrong and Beth Jackson Hughes, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

BASCHAB, Judge.

On the authority of Ex parte Pierce, 851 So.2d 606 (Ala.2000), we remand this case to the circuit court for proceedings consistent with the Alabama Supreme Court’s opinion. Specifically, the circuit court shall conduct “an evidentiary hearing on the question whether Pierce’s claim could have been raised at trial or on appeal and is thus barred pursuant to Rule 32.2(a)(3) or (a)(5).” Pierce, 851 So.2d at 617. The circuit 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 60 days after the release of this opinion. The return to remand shall include a transcript of the evidentiary hearing and the circuit court’s findings of fact and conclusions of law.

REMANDED WITH INSTRUCTIONS.

LONG, P.J., and MeMILLAN, COBB, and FRY, JJ., concur.


author: HOUSTON, Justice. STUART, Justice MOORE, Chief Justice SEE, Justice

text:
    Ex parte Andy Dwight PIERCE. (In re Andy Dwight Pierce v. State of Alabama).
    1981270.
    Supreme Court of Alabama.
    Sept. 20, 2002.
    Rehearing Denied Nov. 22, 2002.

      Ellen L. Wiesner of Cannon & Dunphy, S.C., Brookfield, Wisconsin (brief on remand from denial of postconviction relief filed by LaJuana Davis, Equal Justice Initiative of Alabama, Montgomery), for petitioner.
    William H. Pryor, Jr., atty. gen.; and George A. Martin, Jr., and Beth Jackson Hughes, asst, attys. gen., for respondent.
    Thomas W. Sorrells, Montgomery, for amicus curiae Alabama District Attorneys Association.

       Justice Brown was a member of the Court of Criminal Appeals when that Court considered this case.

   On Return from Remand

HOUSTON, Justice.

The facts of this case were summarized in our previous opinion as follows:

“On January 26, 1989, Andy Dwight Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. His conviction was affirmed on appeal, but the Court of Criminal Appeals remanded the case for resentenc-ing because improper information had been admitted during the sentencing phase of the trial. Pierce v. State, 576 So.2d 236 (Ala.Crim.App.1990). Pierce was resentenced to death, on April 15, 1991. On return to the remand, the Court of Criminal Appeals ordered a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory strikes to exclude blacks from the jury venire. Pierce v. State, 586 So.2d 1005 (Ala.Crim.App.1991). On return to the second remand, the Court of Criminal Appeals held that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced Pierce to death. Pierce v. State, 612 So.2d 514 (Ala.Crim.App.1992). This Court affirmed the conviction and the resentencing, Ex parte Pierce, 612 So.2d 516 (Ala.1992), and the United States Supreme Court denied certiorari review, Pierce v. Alabama, 510 U.S. 872, 114 S.Ct. 201, 126 L.Ed.2d 158 (1993). The Court of Criminal Appeals issued a certificate of judgment on February 3,1993.
“On December 2, 1994, Pierce filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. The trial court dismissed several claims, finding that they were proeedurally barred by Rule 32.2(a)(2), (3), (4), and (5), Ala. R.Crim. P. After conducting an eviden-tiary hearing, the trial court entered an order denying Pierce relief on all of his remaining claims. The Court of Criminal Appeals affirmed. Pierce v. State, 851 So.2d 558 (Ala.Crim.App.1999).
“This Court granted Pierce’s petition for certiorari review, to examine one of Pierce’s four claims — that Sheriff Douglas Whittle had been a key witness for the prosecution and that he had improperly had close and continual contact with the jury throughout the trial. The Court of Criminal Appeals held that this issue was proeedurally barred by Rule 32.2(a)(3) and (5) because it was not raised at trial or on direct appeal, and it further held the claim to be without merit. We reverse and remand.”

Ex parte Pierce, 851 So.2d 606, 607-08 (Ala.2000). In Pierce, we concluded that “Sheriff Whittle was in fact a key witness for the State,” 851 So.2d at 610, and found “undisputed evidence indicating [Sheriff Whittle] had close and continual contact with the jury,” 851 So.2d at 608, in violation of Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). We also held that Pierce’s Turner claim, which properly fits under Rule 32.1(a), Ala. R.Crim. P., would be proeedurally barred by Rules 32.2(a)(3) and (5) if “Pierce’s attorney did know or should have known of the sheriffs contact with the jury during the trial,” 851 So.2d at 616, and we remanded the case for the Court of Criminal Appeals to remand to the trial court for an evidentiary hearing on that issue. In remanding, we noted that we were not foreclosing the viability of Pierce’s alternative claim of ineffective assistance of counsel. Id. at 617.

On remand, the trial court found that Pierce’s attorney knew or should have known of the sheriffs contact with the jury during the trial. While this finding may result in the preclusion of Pierce’s underlying Turner claim, it effectively breathes life into his ineffective-assistance-of-counsel claim, which requires proof (1) that Pierce’s attorney did not provide reasonably effective assistance and (2) that Pierce’s attorney’s deficient performance prejudiced Pierce. Ex parte Land, 775 So.2d 847, 850 (Ala.2000) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

We answered the question of prejudice in Pierce when we held that a Turner violation occurred. In so holding, we quoted Turner, 379 U.S. at 473, 85 S.Ct. 546, which noted that “ ‘it would be blinking reality not to recognize the extreme prejudice inherent in [the] continual association throughout the trial between the jurors and ... key witnesses for the prosecution.’ ” 851 So.2d at 605. We also find that the failure to raise this constitutional violation constitutes a failure to provide reasonably effective assistance. Therefore, based upon the trial court’s findings and our previous conclusions in Pierce, we hold that Pierce is entitled to a new trial based upon his ineffeetive-assistance-of-counsel claim.

For the foregoing reasons, we reverse the judgment of the Court of Criminal Appeals and remand the case to the Court of Criminal Appeals for that court to remand it for a new trial.

REVERSED AND REMANDED.

LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

STUART, J., concurs specially.

MOORE, C.J., and SEE, J., dissent.

BROWN, J., recuses herself.

STUART, Justice

(concurring specially).

I have thoroughly reviewed this case, and while I am reluctant to reverse a conviction and a sentence for such a ruthless offense where nothing before me establishes Pierce’s innocence, I recognize that constitutional guarantees must prevail. Pierce was denied effective assistance of counsel; therefore, his conviction and sentence must be reversed.

In his Rule 32, Ala.R.Crim.P., petition, Pierce presents the following claims that concern this Court:

1.“Juror misconduct prior to and during the trial deprived Mr. Pierce of his rights to a fair trial, due process, and a reliable sentencing determination.”
2. “Trial counsel failed to object to witnesses for the state having ex parte contact with the jurors. His ineffectiveness violated Mr. Pierce’s fundamental rights to due process and a fair trial before an impartial jury. Mr. Pierce was prejudiced by counsel’s ineffectiveness because the jurors were likely to base their determinations of credibility upon these ex parte contacts rather than upon the witnesses’ demeanor and testimony at trial. The jurors were thus incapable of making a fair, unbiased determination of Mr. Pierce’s guilt or innocence.”
3. “Counsel was likewise ineffective on appeal to the Alabama Court of Criminal Appeals and the Alabama Supreme Court. He failed to raise issues related to violations of Mr. Pierce’s rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments and Alabama State law.”

I.

As the majority concludes, Pierce’s constitutional “juror-misconduct” claim with regard to the alleged improper contact between Sheriff Whittle and the jurors is procedurally barred by Rule 32.2(a)(3) or (5), Ala.R.Crim.P., because the claim could have been raised and addressed at trial and/or on appeal but was not. The circuit court on remand from this Court, Ex parte Pierce, 851 So.2d 606 (Ala.2000), concluded that this claim could have been raised by counsel and addressed at trial and on appeal. The circuit court made these specific findings:

“It was obvious throughout the five-day trial that Sheriff Whittle would have contact with the jurors. It is further well known that any time a jury is sequestered in Geneva County that the Sheriff and employees of the Sheriffs Department see to the juror’s needs such as transportation to and from the courthouse, to the motel and transportation to different restaurants.
“Geneva County is a small county with a small rural sheriffs office. When a jury is sequestered it takes nearly the entire department throughout the week to assist in sequestering the jury.
“Also, on several instances throughout the trial, at breaks and adjournment, the jurors were instructed on their duties and responsibilities and obligations while sequestered and that they would be assisted by the Sheriff and the Sheriffs Department.”

Additionally, the circuit court noted specific instances in the record where the trial court in open court indicated that Sheriff Whittle would have contact with the jurors. While the extent of Sheriff Whittle’s contact with the jury may not have been apparent from those statements, the statements in and of themselves provided Pierce and his counsel with notice that Sheriff Whittle would have contact with the jurors.

In Hards v. State, 233 Ala. 196, 198, 172 So. 347, 348 (1936), this Court stated:

“Ordinarily, the sheriff and his deputy are the proper officers to have charge of a jury during their deliberations, and that includes the rendering of such services to them as their physical condition needs....
“If defendant thinks that they are disqualified for this or other cause, he should ask the court to have another substituted for them.”

See also § 12-16-10, Ala.Code 1975 (requiring the sheriff to make arrangements for a sequestered jury). The circuit court’s findings are supported by the record on remand, the record of the Rule 32 evidentiary hearing, and the record on direct appeal. Therefore, the circuit court did not err in holding that this constitutional claim is procedurally barred because it could have been, but was not, raised and addressed at trial and on appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P.

II.

Pierce’s contention that his trial counsel was ineffective for failing to bring to the trial court’s attention the alleged juror misconduct, however, is not procedurally barred.

To establish a claim of ineffective assistance of counsel Pierce must establish that his counsel’s performance was deficient and that “but for” counsel’s actions the outcome of his trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

As the majority notes, this Court, in Ex parte Pierce, 851 So.2d 606, evaluated the evidence and conducted a thorough analysis, applying Turner to the facts in Pierce. This Court concluded that a Turner violation had occurred because Sheriff Whittle had had close and continual contact with the jury and because “Sheriff Whittle was in fact a key witness for the State.” 851 So.2d at 610.

Additionally, applying the standard intimated in Turner that the contact might have unlawfully influenced the jury, this Court held that the violation was prejudicial. Because we concluded that a Turner violation did occur and that the violation was prejudicial to Pierce’s case and because the circuit court concluded that Pierce’s counsel knew or should have known of the alleged misconduct, Pierce’s counsel’s performance was deficient for failing to present this issue to the trial court. Moreover, in light of Sheriff Whittle’s continuous contact with the jury, especially his statements informing the jury that members of Pierce’s family had threatened the jurors, Pierce established that he was prejudiced by counsel’s performance. To show prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Pierce has met this burden and has established his right to a new trial.

MOORE, Chief Justice

(dissenting).

I must respectfully dissent from the main opinion. This Court erred in several ways when it issued its September 1, 2000, opinion in this case. First, I do not believe the sheriff was a key witness in this case. Second, even if the sheriff was a key witness, I do not consider him to have had close and continual contact with the jury. Third, Rule 32.1(e) requires that a claim of newly discovered evidence, from which the constitutional violation in this case arises, must meet certain strict conditions. In its September 1, 2000, opinion, this Court eliminated those conditions, e.g., the requirement in Rule 32.1(e) that the petitioner show he is innocent of the crime of which he was convicted.

We remanded this case for the Court of Criminal Appeals to remand it to the trial court for an evidentiary hearing on the question whether Pierce’s claim could have been raised at trial or on appeal and whether it was thus barred by Rule 32.2(a)(3) or (5). Specifically, we were concerned with whether Pierce’s trial counsel in fact knew or should have known of the extent of the sheriffs contact with the jurors during the trial. Ex parte Pierce, 851 So.2d 606, 616 (Ala.2000).

There were several reasons why this Court considered it important to remand the case for a new hearing. This Court had determined that the sheriff was a “key witness” and that the sheriff had had “close and continual association” with the jury during the trial. Furthermore, the Court carved out an exception to the requirements of Rule 32, Ala.R.Crim.P., for cases involving constitutional claims. I do not agree that the sheriff was a “key witness,” nor do I agree that he had “close and continual association” with the jury. Also, I consider that exception it made to Rule 32 to be in error. When this Court adopts a rule, we should follow it and not allow such exceptions. Pierce had an opportunity to appeal his conviction and sentence by alleging legal errors in the case. He was under no obligation in that appeal to show that he was innocent of the crime. However, once he sought review by another method, that is, by way of Rule 32, he came under the stricter requirements of that rule for such a petition to be successful. He could not meet the requirement of Rule 32.1(e). Therefore, I would affirm the judgment of the trial court as to Pierce’s guilt and sentence, and I would also affirm the denial of his Rule 32 petition.

This Court’s September 1, 2000, opinion summarizes the proceedings as follows:

“On January 26, 1989, Andy Dwight Pierce was convicted of murder committed during the course of a robbery, and he was sentenced to death by electrocution. His conviction was affirmed on appeal, but the Court of Criminal Appeals remanded the case for resentenc-ing because improper information had been admitted during the sentencing phase of the trial. Pierce v. State, 576 So.2d 236 (Ala.Crim.App.1990). Pierce was resentenced to death, on April 15, 1991. On return to the remand, the Court of Criminal Appeals ordered a hearing to determine whether the prosecution could provide race-neutral reasons for its use of peremptory strikes to exclude blacks from the jury venire. Pierce v. State, 586 So.2d 1005 (Ala.Crim.App.1991). On return to the second remand, the Court of Criminal Appeals held that the prosecution had offered race-neutral reasons for its strikes and that the trial court had properly resentenced Pierce to death. Pierce v. State, 612 So.2d 514 (Ala.Crim.App.1992). This Court affirmed the conviction and the resentencing, Ex parte Pierce, 612 So.2d 516 (Ala.1992), and the United States Supreme Court denied certiorari review, Pierce v. Alabama, 510 U.S. 872, 114 S.Ct. 201, 126 L.Ed.2d 158 (1993). The Court of Criminal Appeals issued a certificate of judgment on February 3,1993.
“On December 2, 1994, Pierce filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. The trial court dismissed several claims, finding that they were procedurally barred by Rule 32.2(a)(2), (3), (4), and (5), Ala. R.Crim. P. After conducting an eviden-tiary hearing, the trial court entered an order denying Pierce relief on all of his remaining claims. The Court of Criminal Appeals affirmed. Pierce v. State, 851 So.2d 558 (Ala.Crim.App.1999).
“This Court granted Pierce’s petition for certiorari review, to examine one of Pierce’s four claims — that Sheriff Douglas Whittle had been a key witness for the prosecution and that he had close and continual contact with the jury throughout the trial. The Court of Criminal Appeals held that this issue was procedurally barred by Rule 32.2(a)(3) and (5) because it was not raised at trial or on direct appeal, and it further held the claim to be without merit.”

851 So.2d at 607-08.

In its opinion of September 1, 2000, this Court reversed the judgment of the Court of Criminal Appeals and stated that Sheriff Whittle was a key witness; that he had had close and continual contact with the jury during the trial; that, according to the United States Supreme Court’s opinion in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), such contact was prima facie prejudicial to Pierce; and that an exception to the claim-preclusion mechanism of Rule 32, Ala. R.Crim.P., operated upon Pierce’s constitutional claim to allow his Rule 32 petition to be heard.

I agree with the Court of Criminal Appeals, whose opinion of March 2, 1999, Pierce v. State, 851 So.2d 558 (Ala.Crim.App.1999), contained the following sound reasoning:

“At the outset, we hold that [Pierce] has not satisfied his burden of proving that the alleged improper contacts between Whittle and the jury constitute newly discovered evidence. Therefore, the circuit court correctly found that [Pierce’s] claim concerning Whittle’s alleged improper contact with jurors was procedurally barred because [Pierce] could have raised it at trial or on appeal but did not. Rule 32.2(a)(3) and (5), Ala. R.Crim. P.
“With regard to newly discovered evidence, Rule 32.1(e), Ala. R.Crim. P., provides:
“ ‘(e)Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“ ‘(1) The facts relied upon were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“ ‘(2) The facts are not merely cumulative to other facts that were known;
“ ‘(3) The facts do not merely amount to impeachment evidence;
“ ‘(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“ ‘(5) The facts establish that petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that petitioner received.’
“When filing a petition for post-conviction relief, ‘[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ Rule 32.3, Ala. R.Crim. P. [Pierce] has not satisfied his burden of proving that his allegations qualify as newly discovered evidence.”

851 So.2d at 565.

In addition to the analysis of the question by the Court of Criminal Appeals, we have the trial court’s order after remand. The trial court held a hearing on these questions and determined that Pierce’s trial counsel should have known of the sheriffs contact with the jurors for the following reasons:

1) It is well-known in Geneva County that when a jury is sequestered, the sheriff and other employees of the sheriffs department see to the jurors’ transportation needs;

2) Geneva County is a small county, and the sheriffs office is also small, requiring nearly the entire sheriffs office to assist a jury that has been sequestered;

3) At several times during the trial, the jury was instructed that it would be assisted by the sheriff;

4) The instructions even stated that the sheriff would explain the arrangements to the jury; and

5) It was plain that the sheriff had contact with the jury in the courtroom during trial.

Therefore, I agree with the Court of Criminal Appeals in its affirmance of the trial court on this issue because Pierce did not satisfy the requirements of Rule 32.2(a)(3 and (5), Ala. R.Crim. P. Because Pierce could have raised this issue during trial, at sentencing, or on appeal, he must be denied relief. See Rule 32.2, Ala. R.Crim. P. Also, Pierce has not shown how the result of his trial could have been different even if he had raised an objection to Sheriff Whittle’s contact with the jury before the trial court. Rule 32.1(e)(4), Ala. R.Crim. P. Nor has he shown, as required by Rule 32.1(e)(5), Ala. R.Crim. P., that the facts show that he was innocent of the crime with which he was charged or that he should have received a different sentence. Therefore, the trial court properly denied his Rule 32 petition on this issue. Pierce failed to satisfy Rule 32.1(e), and any one of the three reasons listed above would have prevented his petition from being considered as one that raised newly discovered evidence as required by Rule 32.1(e). His petition is therefore precluded by Rule 32.2(a)(3) and (5).

The following analysis by the Court of Criminal Appeals is the correct one and the one this Court should apply in this case:

“Even if this claim were properly before us, we would decide it adversely to [Pierce], First, the facts do not support [Pierce’s] claim that Whittle had an improper close and continual association with the jurors. Second, the record does not show that Sheriff Whittle was a key State witness. Third, [Pierce] has not shown any evidence that he was actually prejudiced by any contacts between Whittle and the jury.
“First, [Pierce] has not shown that Sheriff Whittle had close and continual contact with the jurors. At the eviden-tiary hearing on [Pierce’s] Rule 32 petition, three jurors — Gerald Butler, Robert Owens, and Keith Brown — testified regarding Sheriff Whittle’s contact with the jury during the trial. Dot Kirkland, who served as a matron for the jurors during the trial, also testified regarding Sheriff Whittle’s contacts with the jurors during the trial.
“Gerald Butler testified that he thought Whittle was in the courtroom with other law enforcement personnel at one time during the trial, but he was not sure. He did not remember Sheriff Whittle driving the jurors or eating with the jurors any time during the trial. He did testify that, on some mornings during the trial, Whittle went to the motel where the jurors were staying to make sure everything ran smoothly.
“Butler also testified that, on the morning just before the sentencing hearing began, Whittle told him there would be extra security in the courtroom because a member of [Pierce’s] family had threatened the jury. However, Butler stated that he and Whittle did not discuss the facts of the case during that conversation. He also added that he did not discuss the facts of the case at any time with Whittle or any of the bailiffs or deputies. Finally, he testified that the extra security in the courtroom did not disturb him.
“Robert Owens testified that Whittle did not drive the jurors while they were sequestered. Although he stated that Sheriff Whittle was sometimes ‘with’ the jurors at lunch, Owens also testified that only some of the deputies and Dot Kirkland ‘ate with’ the jurors. He testified that he had known Whittle all of his life, but stated that that did not have any effect on his decisions as to [Pierce’s] guilt or during sentencing. He further testified that he followed the trial court’s instructions and made his decisions based only on the testimony, exhibits, and evidence presented at trial.
“Keith Brown testified that he did not specifically remember who drove the jurors back and forth between Geneva and Enterprise, although he indicated that he thought Whittle and some of his deputies did. He stated that he did not remember being in the car Whittle was driving. He also testified that Whittle and some of his deputies went with the jurors to eat lunch. However, he stated that Whittle did not discuss the facts of the case during lunch. Brown testified that he overheard something in the hallway of the courthouse about [Pierce’s] family making threatening comments.
Although he was not sure, he testified that he thought the people he heard talking were deputies. However, he testified that the fact that he heard about the threats did not affect his deliberations.
“Dot Kirkland testified that she, Whittle, and the chief deputy drove the vehicles that transported the jurors during the trial and that they accompanied the jurors to lunch. She added that neither she, Whittle, nor the chief deputy talked to the jurors about the facts of the case.
“Thus, the evidence concerning Sheriff Whittle’s contact with the jury was conflicting. [Pierce] alleges that Whittle talked with the jurors about the case and that Keith Brown heard Whittle and his deputies discussing the threats [Pierce’s] family made against the jury. All of the testimony at the evidentiary hearing established that Whittle did not discuss the facts of the case with the jurors. The only mention of a conversation between Sheriff Whittle and a juror was that, on the morning before the sentencing hearing, Whittle communicated to Juror Butler the fact that security was being increased because [Pierce’s] family had threatened the jurors. However, this occurred after [Pierce] had been found guilty, and Butler testified that it did not affect his sentencing recommendation. Juror Brown testified that he thought he overheard deputies, not Whittle, discussing the threat, but stated that it did not have any effect on his deliberations.
“[Pierce] also cites Dot Kirkland’s testimony that Whittle ate lunch with the jurors every day and transported the jurors to and from Enterprise every day during the trial, and states that these assertions are supported by other testimony. However, there was also testimony that Whittle did not drive or eat with the jurors during the trial. Again, the testimony was conflicting. In such an instance, the circuit court’s decision regarding the credibility of the witnesses should be given great deference. Here, the circuit court, in addressing the merits of [Pierce’s] claim, made the following findings of facts after the eviden-tiary hearing:
“ ‘The next claim is that jurors had ex parte contact with Sheriff Whittle during the trial. There was testimony presented at the Rule 32 hearing that Sheriff Whittle, on occasion, helped transport the jurors to lunch and to and from their hotel. There was no evidence presented that the Sheriff ate with the jurors or that any discussion occurred between the jurors and the Sheriff concerning the facts of the case. In fact, three jurors testified at the Rule 32 hearing that there was no discussion between Sheriff Whittle and these jurors about the facts of this case. Further, the jurors testified that the fact that Sheriff Whittle helped transport them on occasion did not affect their deliberations in this case. Thus, this claim is without merit.’
“(C.R. 345.)
“The circuit court properly found that [Pierce] did not show that Whittle had improper close and continual contact with the jury throughout the trial. Because there was conflicting testimony about Whittle’s contact with the jury, it was the circuit court’s responsibility to make credibility choices and to resolve the conflicts in the testimony. The record of the evidentiary hearing supports the circuit court’s findings, see Nathan v. State, 689 So.2d 934 (Ala.Cr.App.1996), and we will not overturn them. Based on the circuit court’s findings and the evidence presented at the evidentia-ry hearing, we hold that [Pierce] did not present evidence sufficient to support a finding that Whittle had a ‘close and continual association with the jurors.’ Turner [v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965)]. Rather, ‘the attentions are such as might have been expected from the officer in charge of the jury, whoever he might be, when authorized or approved by the trial judge.’ Harris v. State, 233 Ala. 196, 198, 172 So. 347, 348 (Ala.1936). In King v. State, 266 Ala. 232, 238, 95 So.2d 816, 821 (Ala.1957), this court held:
“ ‘The proof shows no undue familiarity between the officers and the juror. In instances of this kind each case stands on its own facts. Bell v. State, 227 Ala. 254, 149 So. 687 [(1933)]. The fact that the officer in charge of the jury testifies to important facts, does not always disqualify him from having charge of the jury. Harris v. State, 233 Ala. 196,172 So. 347.’
“Because [Pierce] has not shown that Sheriff Whittle had improper close and continual contact with the jurors during the trial, his argument must fail.
“Second, [Pierce] did not prove that Sheriff Whittle was a key witness in this case. When he was taken into custody in Coffee County, [Pierce] made a statement about the crime to Coffee County Deputy Jack Hubbard. When Sheriff Whittle and Geneva County Deputy Greg Ward took [Pierce] into custody from Coffee County officials and transported him to Geneva County, [Pierce] made another statement regarding the crime. At trial, Hubbard and Ward testified about the substance of the statements [Pierce] made. [Pierce’s] brother also testified about what [Pierce] had told him about the crime. In addition, [Pierce’s] friends testified about his suspicious actions after the murder, including his having possession of the victim’s automobile, his inconsistent statements about why he was driving the vehicle, and his offer to sell the vehicle to one of his friends for $5. Sheriff Whittle was the last witness to testify for the State, and his testimony was largely repetitive of the evidence already introduced through other witnesses. Although he gave more details in his testimony, the other officers and [Pierce’s] brother had already testified about the substance of each of [Pierce’s] statements. Therefore, much of Whittle’s testimony had already been presented to the jury.
“In addition, [Pierce’s] testimony at trial was consistent with his previous statements to police. In the statement he made to Whittle, [Pierce] admitted taking the victim’s vehicle but denied killing her. In fact, he stated that a man named Jim told him, at gunpoint, to take the vehicle and leave. He contended that Jim killed the victim. This was consistent with the story he had previously told his brother, Hubbard, and Ward and with his later trial testimony. Furthermore, there was other evidence connecting [Pierce] to the crime, including the testimony of John Juhnke, Nathan Pierce, and his friends who observed his actions after the crime. Finally, other witnesses testified about the appearance of the crime scene, the discovery of the victim’s vehicle, and what [Pierce] was doing and what clothes he was wearing when he was arrested. Thus, contrary to [Pierce’s] assertions, Whittle was not the State’s main witness against [Pierce], and his testimony was not necessary to convict [Pierce].
“[Pierce] argues that Sheriff Whittle’s comments about his demeanor and conduct during questioning were damaging to his defense. On direct examination by the State, Whittle testified that [Pierce] was quiet, not belligerent, during questioning. During cross-examination, defense counsel elicited Whittle’s testimony that [Pierce’s] conduct was not consistent with the way most other suspects acted during questioning. Defense counsel also elicited Whittle’s testimony that, during questioning about the murder, [Pierce] became emotional, started crying, and stated that he did not commit the murder. Finally, counsel elicited Whittle’s testimony that [Pierce] talked to the officers every time they asked him to and that he had been a model prisoner while in jail. Thus, defense counsel attempted to use Whittle’s testimony to [Pierce’s] advantage to show that [Pierce] did not act like other criminals, that he did show emotion about the crime, that he cooperated with law enforcement in the investigation of the crime, and that he was a model prisoner. Accordingly, [Pierce’s] arguments about Whittle’s comments are not well taken.
“Much of Sheriff Whittle’s testimony was merely cumulative to the testimony of the other witnesses. Furthermore, it was consistent with [Pierce’s] trial testimony. Finally, based on the evidence presented by the other State witnesses, Whittle’s testimony was not necessary to obtain a conviction. Therefore, [Pierce] did not prove that Sheriff Whittle was a key witness for the State.”

851 So.2d at 567-70.

Pierce then claims that his counsel was ineffective for not raising the issue of Sheriff Whittle’s improper contact with the jury. However, because I do not find Sheriff Whittle to have been a “key witness” or to have had “close and continual contact” with the jury, I believe this claim lacks merit.

Rule 82.1(e) contains certain specific requirements for a successful Rule 32 petition requesting relief on the basis of a nonjurisdictional problem, such as newly discovered evidence. Pierce does not meet any of the three required grounds for relief based on newly discovered evidence. First, he knew or should have known about Sheriff Whittle’s contact with the jury. Secondly, he did not show that had he known of the contact the result of his trial would have been different. And thirdly, he did not show that he was innocent of the crime charged or that he should not have received the sentence he received. This Court’s September 1, 2000, opinion allowed for an • exception from those requirements if the claim raised was a constitutional claim. I agree with the Court of Criminal Appeals that even if he had been able to comply with the requirements of Rule 82, Ala.R.Crim.P., Pierce has not shown that Sheriff Whittle was a “key witness” or that he had “close and continual association” with the jury, thus precluding his claim of ineffective assistance of counsel. His petition was proee-durally insufficient, and the substance of his claims was meritless for more than one reason.

For the above reasons, I must respectfully dissent.

SEE, Justice

(dissenting).

I dissent from the Court’s holding that Pierce was prejudiced by the ineffective assistance of his counsel. In my special writing in Ex parte Pierce, 851 So.2d 606 (Ala.2000), I disagreed “with the [Court’s] conclusion that ‘Sheriff Whittle was a key witness who had improper close and continual contact with the jury.’ ” 851 So.2d at 617. If the sheriffs contact with the jury was not prejudicial, then the failure of Pierce’s counsel at trial, posttrial, or by direct appeal to object to that contact did not constitute ineffective assistance of counsel.

      . Rule 32.1 provides, in part:
      "Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
      "(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.”

      . Rule 32.2 provides, in pertinent part:
      "(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
      "(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
      "(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”

      . This standard is consistent with this Court’s other holdings applying the "might-have-been-prejudiced” standard for addressing juror-misconduct claims. See Ex parte Dobyne,
        805 So.2d 763 (Ala.2001); Dawson v. State, 710 So.2d 472 (Ala.1997).

      . The sheriff has statutory responsibility for making provisions for a sequestered jury. § 12-16-10, Ala.Code 1975. However, when a sheriff, deputy, or court official is a witness in the trial, it is improper for that sheriff, deputy, or court official to have direct contact with the jurors.


text:
    Andy Dwight PIERCE v. STATE of Alabama.
    CR-96-1668.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Ellen Louise Wiesner, Brookfield, Wisconsin; and LaJuana Sharonne Davis, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen.; and Jeremy W. Armstrong and Beth Jackson Hughes, asst, attys. gen., for appellee.
   On Remand from the Alabama • Supreme Court

BASCHAB, Judge.

In accordance with the Alabama Supreme Court’s opinion in Ex parte Pierce, 851 So.2d 618 (Ala.2002), we reverse the circuit court’s judgment and remand this case to the circuit court for a new trial.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.


author: PER CURIAM. ANSTEAD, C.J.,

text:
    John BLACKWELDER, Appellant, v. STATE of Florida, Appellee.
    No. SC01-2058.
    Supreme Court of Florida.
    July 3, 2003.

      Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   PER CURIAM.

Appellant, John Blackwelder, appeals a circuit court judgment sentencing him to death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

I. FACTS

Appellant pleaded guilty to the first-degree, premeditated murder of Raymond D. Wigley. At the time of the murder, Appellant and Wigley were inmates at the Columbia Correctional Institution. In May 2000, they engaged in a consensual sexual encounter. Although Blackwelder did not want a sexual relationship with Wigley, he knew that Wigley would badger him for sex, so Blackwelder decided to murder him. In preparation, Blackwelder positioned three pieces of cord in accessible locations around the bunk beds in his cell. Then he waited for an opportune moment.

That time came on May 6, 2000. On that day, Wigley went to Blackwelder’s cell asking for sex. Blackwelder feigned agreement so that Wigley would consent to being tied to the bed. Wigley disrobed and permitted Blackwelder to tie his hands and feet to the bed and tie a hand towel over his mouth. Blackwelder then knelt on Wigley’s mid-back, reached for one of the hidden cords, and strangled him. Wig-ley pleaded with Blackwelder “not to do this” and stated, “I’ll do anything.” It took ten minutes for Wigley to die. After killing Wigley, Blackwelder turned himself in to prison authorities.

Blackwelder pleaded guilty to first-degree murder. A jury was impaneled for the penalty phase, and it unanimously recommended a sentence of death. The trial court found four aggravating circumstances: (1) the murder was committed while under a sentence of imprisonment (great weight); (2) Blackwelder has been previously convicted of another capital offense or of a felony involving the use or threat of violence to some person (great weight); (3) the murder was especially heinous, atrocious, or cruel (great weight); and (4) the murder was committed in a cold and calculated and premeditated manner (great weight). The trial court also found two statutory mitigating factors (the crime was committed while the defendant was under the influence of extreme mental or emotional disturbance and he lacked the capacity to appreciate the criminality of his conduct or his ability to conform his conduct to the requirements of the law was substantially impaired) and two nonstatu-tory mitigating factors (Blaekwelder’s relationship with his family and his history of sexual abuse as a child). The court gave slight weight to each mitigating circumstance and found that any aggravator, standing alone, would outweigh all the mitigation.

The court imposed a sentence of death. Blackwelder appeals. He raises four claims, which we address below.

II. EQUIVOCATING JURORS

Blackwelder first argues that the jury’s recommendation of death was not the product of adversarial testing because he actively sought jurors with pro-death penalty views. During voir dire, two prospective jurors initially equivocated about the possibility of recommending a life sentence. Both ultimately concluded, however, that they could recommend a life sentence if the mitigating circumstances outweighed the aggravating ones. Both jurors were on the panel that recommended a sentence of death.

Blackwelder concedes that he failed to object to any potential jurors. Black-welder had seven peremptory challenges remaining at the end of jury selection. He did not attempt to challenge either juror for cause. In fact, Blackwelder expressed that he was “happy” with the jury panel. We have held that defendants are required to challenge jurors they find questionable. Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla.1989) (“To show reversible error, a defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted.”). Because Blackwelder chose not to challenge either juror, he cannot now complain about their presence on the jury. To permit relief under this claim would allow a defendant to intentionally inject error into the penalty phase to hedge against a sentence of death. Cf. Armstrong v. State, 579 So.2d 734, 735 (Fla.1991) (affirming where the defendant claimed that the trial court committed fundamental error by charging the jury with an erroneous instruction the defendant had requested).

Even if Blackwelder had preserved this claim, we would deny it on the merits. As we have held, “[i]n a death penalty case, a juror is only unqualified based on his or her views of capital punishment, if he or she expresses an unyielding conviction and rigidity toward the death penalty.” Barnhill v. State, 834 So.2d 836, 844 (Fla.2002). Here, Blackwelder complains that two jurors initially equivocated about the possibility of recommending a life sentence. Neither juror, however, held an unyielding conviction toward the death penalty. Both ultimately agreed they could recommend life if the mitigators outweighed the aggravators.

III. SENTENCING ORDER

Blackwelder next argues that the trial court abdicated its responsibility because the sentencing order copied almost verbatim the State’s sentencing memorandum. At the end of the penalty phase, the trial court requested that each side prepare a proposed sentencing order. The State suggested that preparing a proposed order was a “bad idea” and recommended that each side prepare a sentencing memorandum. Both sides prepared memoranda and the trial court copied substantial portions of the State’s memorandum in its sentencing order.

This issue, too, is procedurally barred because Blackwelder failed to object. See Ray v. State, 755 So.2d 604, 611 (Fla.2000) (holding that although the trial court may have erred in relying on a sentencing order the State prepared, the defendant failed to preserve the issue).

This argument also fails on the merits. It is true that “this Court has held that the trial court may not request that parties submit proposed orders and adopt one of the proposals verbatim without a showing that the trial court independently weighed the aggravating and mitigating circumstances.” Valle v. State, 778 So.2d 960, 965 (Fla.2001) (citing Spencer v. State, 615 So.2d 688, 690-91 (Fla.1993)). In this case, however, the differences between the State’s memorandum and the sentencing order demonstrate that the trial judge independently weighed the aggravating and mitigating circumstances. The sentencing order found three mitigating circumstances, while the State’s memorandum argued that no mitigation applied. The judge also found that the prior violent felony aggravator was supported by a pri- or capital felony and seven other felonies involving violence or the threat of violence—not ten, as the State argued. These differences indicate that the trial court did not simply rubber-stamp the State’s sentencing memorandum, but independently weighed the aggravating and mitigating factors and personally evaluated the case. Cf. Morton v. Florida, 789 So.2d 324, 334 (Fla.2001) (if a resentencing judge copies verbatim the prior sentencing order or substantial portions thereof, reversal is not necessary if it is evident from the record that the resentencing judge performed an independent weighing and personal evaluation of the case).

However, we remind judges of their duty to independently weigh aggravating and mitigating circumstances. A sentencing order should reflect the trial judge’s independent judgment about the existence of aggravating and mitigating factors and the weight each should receive. When a judge simply copies verbatim the State’s submission, whether it is designated a “sentencing order” or a “sentencing memorandum,” the judge abdicates that responsibility. Moreover, such verbatim copying renders more difficult, if not impossible, our own duty to determine whether the trial court fulfilled its sentencing responsibility. Therefore, we warn trial judges that they should avoid copying verbatim a State’s sentencing memorandum. While we recognize the efficiency modern computer technology affords in drafting orders, efficiency cannot substitute for independent consideration of the evidence.

IV. PRIOR VIOLENT FELONY AGGRAVATOR

Blackwelder next claims that the prior violent felony aggravator should be stricken because it was based, in part, on six felony convictions that are not per se crimes of violence. Even if he is correct, however (which we do not address), Black-welder also had been convicted of capital sexual battery, which is per se a crime of violence. In addition, Blackwelder had been convicted of attempted capital sexual battery. Therefore, the prior violent felony aggravator is supported by competent, substantial evidence.

V. RING ISSUES

Finally, Blackwelder argues that Florida’s capital sentencing scheme is unconstitutional in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court, considering the effect of Ring, denied relief in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), which, like Blackwelder’s case, involved a prior-felony-conviction aggravator. Ring rests on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. We have previously rejected claims under Apprendi and Ring in cases involving the prior-felony-conviction aggravator. See Dugo v. State, 845 So.2d 74, 119 n. 79 (Fla.2003) (noting rejection of Appren-di/Ring claims in postconviction appeals, unanimous guilty verdict on other felonies, and “existence of prior violent felonies”); Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (stating that prior violent felony ag-gravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”).

Blackwelder argues specifically that aggravating circumstances must be alleged in the indictment, submitted to the jury, and individually found by a unanimous jury verdict. We recently rejected this same argument. Porter v. Crosby, 840 So.2d 981 (Fla.2003).

VI.SUFFICIENCY OF THE EVIDENCE

Although Appellant does not contest the sufficiency of the evidence for his conviction of first-degree murder, we must nevertheless independently determine whether the evidence is sufficient. See Brown v. State, 721 So.2d 274, 277 (Fla.1998); Fla. R.App. P. 9.140(h). Based on our review, we find that there is competent, substantial evidence to support the verdict. We have outlined that evidence in detail above.

VII.PROPORTIONALITY

Although Blackwelder has not contested the proportionality of his sentence, we have an independent duty to determine whether the sentence of death was proportional — that is, that such a sentence was appropriate in light of the sentences imposed under similar circumstances. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). We find that Blackwelder’s sentence is proportional to other cases where a death sentence has been imposed. See Lawrence v. State, 698 So.2d 1219 (Fla.1997) (death sentence proportional where aggravators of especially heinous, atrocious, and cruel (HAC), cold, calculated, and premeditated (CCP), and under sentence of imprisonment weighed against five nonstatutory mitigators — a learning disability, a low IQ, a deprived childhood, the influence of alcohol, and a lack of a violent history).

VIII.CONCLUSION

For the reasons stated, we approve the trial court’s sentencing order and affirm Blackwelder’s sentence of death.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

For the reasons I expressed in my opinion in Duest v. State, No. SC00-2366, — So.2d —, 2003 WL 21467248 (Fla. June 26, 2003), I cannot agree with the majority’s discussion of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). I do not view the mere existence of a prior violent felony aggravating circumstance as a valid means of rejecting a Ring claim, especially where the trial judge found three other aggravating circumstances and assigned them each “great weight” in the decision to impose the death sentence. Under these circumstances, it is apparent that the essential holding of Ring that a death sentence cannot be predicated upon findings made by the trial judge alone, was violated.