IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

     BETTEY WILSON, 

Petitioner, 

                               Case No. CC-92-1189.60 (LHL)

v.                                                     

                    STATE OF ALABAMA,               

                                 Respondent.             

STATE'S ANSWER AND MOTION TO DISMISS WILSON'S RULE

32 PETITION

Comes now the State of Alabama, Respondent in the above styled cause, and moves this Honorable Court to dismiss the Rule 32 petition filed on behalf of the petitioner, Betty Wilson. As grounds for its motion, the State says the following:

RESPONSE TO PROCEDURAL HISTORY

The State does not dispute the statement of the procedural history contained in Wilson's current Rule 32 petition.

STATEMENT OF THE FACTS OF THE CASE

The State adopts by reference the statement of facts contained in the Alabama Court of Criminal Appeals' opinion on direct appeal in Wilson v. State, 690 So. 2d 449, 451-455 (Ala. Crim. App. 1995). (Attached as State's Exhibit "A^")

I.      WILSON'S ALLEGATION OF NEWLY DISCOVERED EVIDENCE IS PROCEDURALLY BARRED FROM REVIEW.

          On February 23, 2004, Wilson, through counsel, filed her second

postconviction petition pursuant to Rule 32, Ala.R.Crim.P., attacking her

conviction of capital murder and sentence of life imprisonment without
the possibility of parole.  Wilson bases her current Rule 32 petition on
the ground of newly discovered evidence. In support of her current Rule
32 petition, Wilson relies on the deposition and [FORGED] affidavit of Dennis Wayne Johnson.  (Petitioner^'s attachments "A" and ^"C") [Link to Attachment A- Witness Deposition. Link to Attachment C - Forged Affidavit.] The purpose of Johnson's deposition and [FORGED] affidavit are to discredit the testimony of the State's witness, James White. In her first Rule 32 petition, filed on June 23, 1994, Wilson also alleged that she was entitled to a new trial based on newly discovered evidence. (See Wilson's first Rule 32 petition attached as State's Exhibit "B") Wilson based her first petition on an affidavit purportedly executed by James White in which White recanted his trial testimony, (C.R.R.32 at 14-18),¹ Wilson also relied on the testimony of Mike McCulley. McCully testified that, while in jail with White, White said Wilson had nothing to do with the victim's murder and that White had acted alone. (H.R.32 at 47-53)

While the underlying facts of Wilson's two Rule 32 petitions are
different, the substantive allegations are based on the exact same
contention  - that James White lied or committed perjury when he
testified at trial that he was paid by Betty Wilson to murder Wilson's
husband.  ²Rule 32.2(b), Ala.R.Crim.P., states in pertinent that "[t]he
court shall not grant relief on a second or successive petition on the

¹"C.R.R.32^" refers to the clerk's record of Wilson's first Rule 32 petition. "H.R.32" refers to the record

from the evidentiary hearing on Wilson's first Rule 32 petition. "R." refers to the trial record.

²The trial court held an evidentiary hearing on Wilson's first Rule 32 petition on August 25, 1994.

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same or similar grounds on behalf of the same petitioner." Because
Wilson's first Rule 32 petition was adjudicated on its merits, and because
Wilson's second Rule 32 petition is based on the same ground or
contentions as her first Rule 32 petition,  Wilson's second Rule 32
petition is due to be denied.

II.     WILSON'S ALLEGATION OF NEWLY DISCOVERED            EVIDENCE FAILS TO MEET ALL THE REQUIREMENTS OF RULE 32.1(e), ALA. R. CRIM, P.

Alternatively, even if Wilson^'s current Rule 32 petition is not procedurally barred, she is still not entitled to relief. Rule 32.1(e), Ala.R.Crim.P. states:

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.

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Before Wilson's allegation can be considered newly discovered evidence, it must meet all five requirements of Rule 32.1(e), Ala.R.Crim.P. See Tarver v. State, 769 So, 2d 338, 340-341 (Ala. Crim. App. 2000). In Banks v State, 845 So. 2d 9 (Ala. Crim. App. 2002), the Alabama Court of Criminal Appeals addressed what constitued impeachment evidence under Rule 32.1(e)(3), Ala.R.Crim.P. The Court of Criminal Appeals held that:

Black's Law Dictionary 775 (7th ed. 1999) defines "impeach" as "[t]o discredit the veracity of (a witness)," The evidence is not impeaching in that Banks did not seek to discredit the veracity of any witnesses. Rather, the results of the [medical test] served to controvert, that is, disputed the State's witnesses's findings and opinions, not their credibility.

(Emphasis in original) Wilson admits in her Rule 32 petition that Johnson's testimony, if it had been presented at her trial or if it were presented at an evidentiary hearing, would offered to discredit, i.e., impeach, James White^'s testimony. For example, on page 16 of her petition, Wilson contends that "[i]t is clear from Johnson's deposition that White's story concerning Betty Wilson transporting him from the shopping center to the [Wilson's] house on Boulder Circle and back is no more than lies from the lips of a coldhearted criminal mind." Wilson further contends on page 16 of her petition that "White committed perjury time and time again during the trial." Relying on Johnson's deposition, Wilson asserts that "the credibility of James White's testimony is shaken to its rotten core.^" (Petition at p. 19) Wilson further

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contends that Johnson's testimony would "serve as a credible contrast to what they heard from the mouth of James White." (Petition at p. 24)

By Wilson's own admission, Johnson's deposition and [FORGED] affidavit are being proffered to impeach James White's trial testimony. Thus, the allegation in Wilson's Rule 32 petition fails to meet all of the requirements of Rule 32.1(e), Ala.R.Crim.P.; therefore, it is due to be denied.

III.     WILSON'S ALLEGATION FAILS TO ESTABLISH THAT THE TESTIMONY OF JAMES WHITE WAS PERJURED.

In the alternative, even if the Court were to find that Johnson's deposition and [FORGED] affidavit meet all of the requirements of Rule 32.1(e), Ala.R.Crim.P., Wilson would still not be entitled to relief. Wilson also alleges in her Rule 32 petition that the deposition and [FORGED] affidavit of Dennis Johnson prove that James White's trial testimony was false. In Ex parte Frazier, 562 So. 2d 560, 569-570 (Ala. 1989), the Alabama Supreme Court head:

we adopt the following standard, which is to be used in those cases in which a sentence of death has not been imposed: In order to grant a motion for new trial alleging perjured testimony, the trial court must be reasonably well satisfied 1) that testimony given by a witness at trial was false; 2) that there is a significant chance that had the jury heard the truth, it would have reached a different result; 3) that the evidence tending to prove the witness's perjury has been discovered since the trial; and 4) that that evidence could not have been discovered before or during trial by the exercise of due diligence.

In Hays v. State, 599 So. 2d 1230, 1232 (Ala. Crim. App. 1992), the Alabama Court of Criminal Appeals held that "[s]ince a petition for post‑

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conviction relief may serve the same purpose as a motion for new trial on the grounds of newly discovered evidence, this same standard [in Ex parte Frazier] should be applied to a petition for post-conviction relief

alleging that a conviction was based on perjured testimony." (Brackets added)

The Alabama Supreme Court^'s holding in Frazier is unambiguous - in order to be entitled to a new trial based on perjured testimony, Wilson must first establish that James White's trial testimony was false.
Because Wilson's 1994 Rule 32 petition also alleged that White's trial testimony was perjured, the question of the veracity of White's trial testimony has already been specifically addressed. In his order denying Wilson's first Rule 32 petition, Judge Younger had to determine "whether White's testimony at trial was truthful."³  (C.R.R.32 at 51)  Judge Younger presided at Wilson's trial, thus, he could use his personal knowledge of the evidence and testimony in determining the credibility of James White's trial testimony. See Sasser v. State, 643 So. 2d 614, 615 (Ala. Crim. App. 1993) (holding that "[w]here the trial judge has personal knowledge of the facts underlying the allegations in the petition, he may deny the petition without further proceedings so long as he states the reasons for the denial in a written order"). Judge Younger found that "[t]here [was] considerable evidence at trial given by objective, good citizens, which supported the details of White's testimony." (C.R.R.32 at

³ Judge Younger`s order denying Wilson's June 1994 Rule 32 is attached as State's Exhibit "C".

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52) Judge Younger went on to conclude that "[b]ased upon the testimony of witnesses other than White at trial, ... , and the inferences drawn by this Court from those witnesses and others, the Court finds that the testimony of James Dennison White at trial was credible.^" Id.

Based on findings of the trial court, Wilson's allegation that White's trial testimony was perjured is without merit; therefore, this allegation is due to be denied. Rule 32.7(d), Ala.R.Crim.P.

IV.    THE DEPOSITION AND [FORGED] AFFIDAVIT OF DENNIS JOHNSON FAIL TO ESTABLISH THAT JAMES WHITE'S TRIAL TESTIMONY WAS PERJURED.

Wilson attacks the credibility of White's trial testimony while completely ignoring the credibility in Johnson's deposition and [FORGED] affidavit. Johnson gave a sworn deposition on September 7, 2003. On February 14, 2004, Johnson [RON WATSON not Johnson] executed a sworn [FORGED] affidavit purportedly to "clarify" the "other statements" he had made about the victim's murder.

          The direct conflicts in Johnson's deposition and [FORGED] affidavit establish Johnson's complete lack of credibility. In his sworn deposition, Johnson claimed he met James White after the murder and that White was in the company of two men and a woman. Johnson stated that he did not know the real names or the "street" names of any of the individuals that allegedly accompanied White to the bar after the victim's murder. (Dep. at p. 26) In his sworn [FORGED] affidavit, however, Johnson not only provides the alleged proper names of these alleged codefendants, but. also provides their alleged "street^" names. ([FORGED] Affidavit at p. 1)

     When Watson went to Florida to get Johnson to sign the affidavit, Johnson told him he was not sure of the correct names. Watson said, “Just give them any names so me, you and Blackwelder can get more checks from Betty.”  Johnson wanted no part of this little scam so Watson invented his own names, Cynthia “Cindi” Jackson, David “Deke” Howell (White’s third cousin) and Charlie “CW” White (White’s brother). Johnson did know that Deke or Zeke or Preacher or Deacon, was not related to White. He thought that White’s brother might have gone by “Blinky” and “Cindi” could have been Crystal. Other than that he simply did not know their real names.  If Watson and Morrison had done their due diligence, they would have known that White's brother's name was Thurmond Howell not Charlie White.

Similarly, in his

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deposition, Johnson stated he met White after the murder at a bar, the name of which Johnson said he could not remember, in Huntsville on Governor's Drive. (Dep. on pp. 13,15 and 17) Johnson said he could not state with certainty what time White allegedly arrived at the unnamed bar, but claimed that he, Johnson, arrived at about 7:00 p.m. (Dep. at p. 16) In his [FORGED] affidavit,  however, Johnson states that after the murder he met White in a specific bar at a specific time - the Bar at the Ramada Inn at 7:00 p.m. ([FORGED] Affidavit at p. 1)

      In Johnson’s deposition he stated he arrived at the biker’s bar as the sun was going down and could be more specific if he knew what time the sun set that evening. Morrison furnished the 7:00 pm. time. White’s arriving at the same time was a fabrication of Watson’s imagination. In the forged affidavit Watson had marked out the Ramada Inn portion of “the bar at the Ramada Inn” but he neglected to mark out the Ramada Inn portion of “the bar at the Ramada Inn” later in the forged affidavit.

In his deposition, Johnson states that White asked him to take a .38 caliber pistol to Tennessee and sell it. (Dep. at p. 30) In his [FORGED] affidavit, Johnson contends that White tried to sell him the pistol for $50  and, when Johnson would not buy it, tried to sell it to the bartender. ([FORGED] Affidavit at p. 1)

      In Johnson’s deposition he said White tried to sell him the gun but he wasn’t interested in buying it because it had probably been stolen. No price was mentioned. The $50 mentioned in the forged affidavit was a figment of Watson’s imagination. And, the bartender’s name was “Tiny” not “Tony” as Watson had written in the forged affidavit.

In his deposition, Johnson said he was told  "later" by someone other than White about money allegedly being taken during the burglary/murder from the victim^'s shoe. (Dep. at p. 40) In his [FORGED] affidavit, however, Johnson swears that White told him that White took $2000 from the victim's wallet. ([FORGED] Affidavit at p. 1) Johnson offers no reason or explanation for the stark differences between his deposition and his [FORGED] affidavit.

      Again this statement in the forged affidavit was another figment of Watson’s imagination. Maybe he got the $2,500 that Johnson paid White confused with the unknown amount of money taken from the shoe. After all, the $2,500 was one of the items that Morrison wanted Johnson to address in the affidavit. Morrison not Johnson should have been the one who offered an explanation for the stark differences between his deposition and his affidavit, i. e., the entire affidavit was a fabrication of Watson’s imagination and Johnson never signed it, but Morrison never bothered to do anything about it.

          Further, in determining the credibility of Johnson's statements, the Court must consider that Johnson, by his own admission, was (or maybe is), a "fence" for stolen cars. (Dep. at pp. 13-15) Johnson contends he conspired with White to steal. the victim's Mercedes Roadster so Johnson could sell it out of State, (Dep. at pp, 14) For Johnson to testify at trial,

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or at an evidentiary hearing, he would have had to be willing to waive his Fifth Amendment right against self-incrimination. Johnson's testimony would, at a minimum, implicate him the commission of a felony-murder, See Ex parte Dorsey, Ms. 1011507, 2003 WL 1949856, at *5 (Ala. Apr.
25, 2003) (holding that "[f]elony murder requires no intent to kill, but
only the intent to commit the underlying felony"), Nothing in Johnson^'s deposition or [FORGED] affidavit indicate he would be willing to incriminate himself in a homicide. Further, in his deposition, Johnson said he did not have any kind of record with police or law enforcement. (Dep. at p. 11) A criminal history reveals, however, that Johnson has had numerous arrests and convictions. (See Criminal History of Dennis Wayne Johnson attached as State's Exhibit "D")

      As far as the criminal history, the charges covered a forty year period with the last one being almost twenty years old. It was obvious the report contained the records of numerous individuals. The first arrest was for a DUI. If this individual had been Johnson, he would have been thirteen years old at that time. During the time some of these individuals were in trouble with the law in Arizona, California, Texas, South Carolina, and Tennessee, Johnson was in the Marine Corps. There were two sets of fingerprint codes and no photographs were available.

     It would be interesting to know what criteria the authorities used to run this criminal history.

     Johnson had two background checks, one in 1996 and the other in 2000 which were negative, otherwise he wouldn’t have been able to work security at casinos and be a maintenance supervisor at the hotel in Florida. He had told Morrison right from the start that if anything showed up on a criminal background check someone from the ATF would gladly come in and tell what his record was and how any false items might have gotten there.

Moreover, the testimony at Wilson's trial and evidence collected during the investigation establish that Johnson's statements [FORGED AFFIDAVIT] are [IS] a work of pure fiction. The testimony and evidence at Wilson's trial establish that James White was not even in Huntsville during the time after the murder when Johnson contends he and White met. At Wilson's trial, White testified that on his way home to Vincent after the murder he stopped at a service station in Guntersville and, inter alia, called his brother. (R. 515) Telephone records from White's home in Vincent prove that on May 22, 1992, a telephone call was made from the Conoco service station in Guntersville (telephone number 852-8316) to White's home in Vincent at 6:52 p.m. (See affidavit of Micky Brantley, attached

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as State's Exhibit "E") Further, Shirley Smith, the owner of Smith's Grocery Store in Vincent where White traded, testified that she saw White the night of victim's murder at her store in Vincent between 8:00

p.m. and 9:00 p.m.⁴ (R. 812) Further, Tony Ward stated to police that he also saw James White in Vincent between 8:30 p.m. and 9:00 p.m. the night of the murder at the Smith's Grocery. (See affidavit of Micky Brantley, attached as State's Exhibit "E") Obviously, White could not be
in two places at the same time.

      The circumstantial thing about telephone records is that unless there is a witness on either end of the call present to identify the caller or the recipient, the call can be made by anyone to anybody. Take for example the 6:52 pm call from the Conoco service station to White’s residence. This call was actually made by Ronnie Reeves, who ran a carnival for the realtor from Atlanta who was in the market for the 1991-92 long-nosed Cadillac and later switched to the Mercedes. The witness to this call was none other than Johnson who was at an adjacent phone booth calling Vicki to see if she was still going to meet him at the “unnamed” biker’s bar on Governors Drive. Reeves had met Johnson there to bring him his trailer to haul off the Mercedes that night. If Johnson left Guntersville around 7:00 pm, his estimated arrival time at the biker’s bar in Huntsville would have been around 7:48 pm just as the sun was going down on May 22, 1992.

     As far as Shirley Smith, at Betty’s trial, she said her husband had been at the store for fifteen years and White had been a customer for about a year. At Peggy’s trial she said she had been at the store for ten years and her husband for twenty years and White and his wife had been customers for ten years. With a memory like that how could she have remembered the exact date and time on any given day that White might have been in her store? And, where in the world did Brantley come up with Tony Ward. He didn’t testify at either trial.

Wilson also contends in her Rule 32 petition that Johnson's deposition proves that James White received  $2500 from Dennis
Johnson and, thus, proves she did not contract to murder her husband. Johnson contends in his deposition that he gave White $2500 of his own money "about two or three weeks" before the murder. (Dep. at p. 20) Johnson later states that he gave White $2500 "around the 1st of May." (Dep. at p. 77) The evidence at trial, however, proves beyond all doubt that White possessed a large amount of cash in April 1992. Linda Bush,
a teller at the Vincent branch of the First Bank of Childersburg, testified that she knew James White because he had been a customer at her bank for two to three years before the murder.⁵ (R. 820) Bush testified that on April 27, 1992, White made $1,003.83 worth of cash transactions. Specifically, Bush testified that White deposited $500 into his checking

⁴ Shirley Smith's trial testimony, R. 806-816, is attached as State's Exhibit “F”.

⁵ Linda Bush's trial testimony, R. 817-848, is attached as State^'s Exhibit "G^".

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account, made payments on two loans, and purchased two money
orders. Bush also testified that White had other cash money with him in addition to cash he used in his transactions with her, (R 830) Bush's testimony corroborates James White's trial testimony that he received $2500 from Peggy Lowe in April 1992 as partial payment to murder the victim. (R. 434)

      This argument is somewhat weak. There is only a four day difference between April 27 and May 1. Either date would have been approximately three weeks prior to the murder. It had been eleven years since this incident occurred. What did they expect? Yes, the evidence at the trial proved beyond all doubt that White possessed a large amount of cash on April 27, 1992, of which Ms. Bush could only account for $1,003.83 and guessed that the remainder of the money he had in his possession was the balance of the $2,500. In November 1991, his total deposits were $5,600, $3,500 of which was deposited in a short four day period. What would that prove? White had a good month selling dope or scamming some little old ladies?

      Bush testified at Betty’s trial White had two bundles of $100 bills wrapped in purple $1000 bank straps and that White had been a customer for four years. At Peggy’s trial she wasn’t sure if the $1000 purple bank wrappers contained $100 bills or $20 bills and that White had been a customer for ten years not two to three. White testified that he had gotten three $100 bills and one hundred and ten twenties from Peggy in a black and white K-mart bag with no purple bank wrappers. And, Bush’s testimony is supposed to corroborate White’s trial testimony to prove beyond all doubt that Peggy Lowe gave him $2,500 on April 27, 1992, as a down payment to murder Dr. Wilson?

Moreover, the Court must consider the sources of the "facts" and ^"information^" in Johnson's statement.  Most of the "facts" or
"information" in Johnson's September 7, 2003, deposition is not based
on his personal knowledge, but, instead, is based on what he "heard"
and what he was "told."  (Dep. at pp. 32, 38, 40-42, 48-49, 53, 61, 63-
66, 69-72, 78, 81, 92-93, 107, 113, and 117) Johnson makes numerous references to alleged information he learned from the Internet. (Dep. at pp. 35, 53, 82-83, 111, 115, and 118) Johnson also indicated that four months before his September 7, 2003, deposition that he rode a motorcycle from Florida to Huntsville to talk to an unnamed person about Wilson's case and, for some unknown reason, tried  to secretly record the conversation. (Dep. at pp, 95-96) Further, Johnson's deposition indicates that he spoke with at least two people, people

possibly employed by or working for Wilson, before giving his deposition
on September 7, 2003. (Dep. at pp, 105, 108, and 117)

      Granted some of his information was based on what he heard or was told but if Betty's "defense team" had not been so adamant on setting up Johnson, this information could have been turned into affidavits by at least four or more people, two of whom had personal knowledge of what happened regarding Dr. Wilson’s murder. Johnson’s personal knowledge of the incident that he gave in his deposition proved that White lied about what he had done after the murder, that White didn’t act alone, that Betty didn’t give him her gun, and that he didn’t get the $2,500 from Peggy.

     Johnson didn’t know anything about the murder so he spent some time studying the case as presented on the Internet which included copies of the Wilson and Lowe trial transcripts.

     Johnson rode his motorcycle to Huntsville to talk to this unnamed person because he wanted to satisfy himself that Betty was innocent. On this trip he did not record anyone’s conversation. And, as far as the reference to “at least two people” employed by or working for Betty Wilson, there where two incidences referred to in the answer which involved only one person, and she was not employed by or working for Betty Wilson in the sense of being paid for services rendered.

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CONCLUSION

          Wilson's current Rule 32 petition is precluded from review by the Court because it is based on the same ground as her first Rule 32 petition. Alternatively, Wilson has failed to establish that James White's testimony was perjured. Further, the direct conflicts and serious contradictions between Dennis Johnson's deposition and [FORGED] affidavit, including outside influences, establish that his statements are not credible.  The credibility of Johnson^'s statements are further eroded
based on the testimony and evidence admitted at Wilson's trial and other evidence collected by law enforcement  during its investigation.  Therefore, Wilson's Rule 32 petition is due to be denied by the Court. 

      There were some critically false items included in the FORGED affidavit and covered in Johnson’s deposition that the state did not address. White never approached Johnson telling him that he had planned to rob “the Dr. Jack Wilson house on Boulder Circle, Huntsville, Alabama, and steal a Mercedes Benz Roadster.”  Johnson knew nothing about White’s planned burglary and did not know where White was getting the Mercedes. The FORGED affidavit stated, “they beat Dr. Wilson with a bat and a piece of rebar” and stabbed him at some point. In Johnson’s deposition he stated they had to hit him to shut him up. And, no where in Johnson’s deposition or at any other time had he said, “White had mentioned that the rebar had been cut with bolt cutters and at the end was a small piece of rebar in the shape of a small cross.”  Ron Watson, the author of the FORGED affidavit, must have been having a hallucination of the crime scene photo of the puncher wound in Dr. Wilson shoulder and was trying to prove the wound was made with this described piece of rebar.

                                           Respectfully submitted June 10, 2004.

                                            ______________________________________

                                            JON B. HAYDEN

                                            ASSISTANT ATTORNEY GENERAL

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CERTIFICATE OF SERVICE

I hereby certify that on June 10, 2004, a copy of the foregoing was served on counsel for Wilson by placing said copy in the United States Mail, first class, postage prepaid and addressed as follows:

D. Brent Morrison

111 South Main Street

P.O. Box 202

Piedmont, AL 36272

              _______________________________

              JON B. HAYDEN

              ASSISTANT ATTORNEY GENERAL

ADDRESS FOR STATE'S COUNSEL:

Office of the Attorney General

11 South Union Street

Montgomery AL 36130

(334) 353-3123

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