JUDGE LITTLE'S ORDER DENYING BETTY WILSON HEARING

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

BETTEY WILSON,

Petitioner,

Case No. CC-92-119460(LHL)

STATE OF ALABAMA,

Respondent.

COURT'S ORDER ON WILSON'S RULE 32 PETITION

Having considered the postconviction petition filed pursuant to
Rule 32, Ala.R.Crim.P. on behalf of the Petitioner, the State's answer and
motion to dismiss, and the attachments and exhibits submitted by the parties, the Court hereby finds as follows:

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 affidavit of Dennis Wayne Johnson. (Petitioner's attachments "A^" and "C") The purpose of Johnson's deposition and 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. (State's Exhibit "B") Wilson based her
first Rule 32 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 at the evidentiary hearing on Wilson's first Rule 32 petition 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.' Rule 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
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, the Court finds that Wilson's second Rule 32 petition is a successive petition. Wilson's current Rule 32 petition is, therefore, denied.

In the alternative, in an abundance of caution, the Court will
address the merits of Wilson's current Rule 32 petition.

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

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

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.

Before the allegations in Wilson's current Rule 32 petition 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 be offered 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 cold-hearted 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
contends that Johnson's testimony would "serve as a credible contrast to
what [the jury) 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. The Court finds that 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, Wilson's Rule 32 petition is hereby denied.

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

In the alternative, even if Johnson's deposition and affidavit meet
all of the requirements of Rule 32.1(e), Ala.R.Crim.P., the Court finds
that Wilson would still not be entitled to relief. Wilson also alleges in her
Rule 32 petition that the deposition and 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 held:

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 fame; 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-
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 addressing the allegations in Wilson's first Rule 32 petition, Judge Younger had to determine "whether White's testimony at trial was truthful." (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 at trial 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 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. Nothing in Wilson^'s current Rule 32 petition persuades the Court to disturb Judge Younger's findings.

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

IV. THE DEPOSITION AND 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 of Johnson's deposition and [FORGED] affidavit. Johnson gave a sworn deposition on September 7, 2003. On February 14, 2004, Johnson [RON WATSON] executed a sworn [FORGED] affidavit purportedly to "clarify" the "other statements" he had made about the victim's murder.

See Forged Affidavit

See Witness Deposition

The direct conflicts in Johnson^'s deposition and his [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) Similarly, in his 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 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 affidavit, Johnson contends that White tried to sell him thepistol for $50 and, when Johnson would not buy it, tried to sell it to the bartender. ([FORGED] Affidavit at p. 1) 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.

Further, in determining the credibility of Johnson's statements, the
Court considers that Johnson, by his own admission, was 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, 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 provided by the State reveals, however, that Johnson appears to have had numerous arrests and convictions. (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 Court finds that testimony at Wilson's trial and

evidence collected during the investigation establish that Johnson's
statements in his deposition and [FORGED] affidavit are not credible. 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.
(State's Exhibit "E") Further, Shirley Smith, the owner of Smith's
Grocery Store in Vincent where White traded, testified during Wilson's
trial 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. (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.

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 1^stof 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. (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 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 considers 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.

CONCLUSION

           The Court finds that Wilson's current Rule 32 petition is
successive and, therefore, is precluded from review because it is based
on the same ground as her first Rule 32 petition. In the alternative, the
Court finds that Wilson has failed to establish that James White's trial
testimony was perjured. Further, the Court finds that the direct conflicts
and serious contradictions between Dennis Johnson's deposition and his
[FORGED] affidavit establish that his statements are not credible. The Court further finds that the testimony at Wilson's trial together with other
evidence collected by law enforcement during its investigation of the