Findings Concerning the Existence or Non-Existence of Other Mitigating Circumstance
Judge Rains said that the state’s case against Barbara was considerably dependent on the statements that she, herself, had made. On the other hand, Schiess had made no statements to anyone, at any time. Barbara’s incriminating statements were admissible in evidence against her, the judge said, but under Alabama’s rules of evidence, they were not admissible against Schiess. Accordingly, unlike the case against Barbara, the prosecution had no self-incriminating statements that they could use for the prosecution of Schiess. Nevertheless, the court was satisfied that Schiess had a high degree of culpability in the murder of Darlene Roberts. Even without any incriminating statements by Schiess, his involvement in the crime could not be ignored.
The case against Barbara relied heavily on the incriminating testimony of Barbara’s cellmate, Tonya Regalado, who was a convicted felon.
The testimony of a jailhouse informant is often suspect,
the judge wrote.
The testimony of a convicted felon is often suspect. Without the testimony of Rega-lado, the evidence points more toward Schiess.
Judge Rains stated that on August 6, 2008, Schiess entered a plea of guilty to kidnapping, first degree, as a lesser included charge within Count Two of the indictment against him. All other charges, the judge wrote, including the charges of capital murder, were dismissed:
The sentence imposed pursuant to the plea agreement was twenty years in the state penitentiary. Pursuant to the Alabama Split Sentence Act, and in accordance with the plea agreement, Schiess was ordered to serve three years in the state penitentiary with jail credit for 652 days of confinement served up until the day of his plea, followed by five years on probation.
Judge Rains wrote that the only sentence alternatives to the court in Barbara’s case were life in the state penitentiary without the possibility of parole, or death.
The disparity between the sentencing options available in this case and the sentence received by Schiess is significant,
the judge noted.
When the Jury recommended that the Court impose a sentence of death, the jury was not aware of this disparate result.
Considering the culpability of Schiess, the Defendant’s dependence on him, and the Defendant’s expressed fear of him, the Court finds this sentencing disparity to be a mitigating factor.
Conclusion
In his conclusion Judge Rains wrote that the court had carefully considered the aggravating circumstances that had been proven to the satisfaction of the court beyond a reasonable doubt, and the recommendation of the jury:
The Court has also considered the mitigating circumstances as set out herein. The aggravating circumstances do not outweigh the mitigating circumstances.
Sentence
Judge Rains then presented his sentence:
It is hereby Ordered, Adjudged and Decreed that the Defendant shall be, and is hereby, sentenced to LIFE IN THE STATE PENITENTIARY WITHOUT THE POSSIBILITY OF PAROLE for the CAPITAL MURDER of Darlene Roberts. The Defendant is further sentenced to LIFE IN THE STATE PENITENTIARY for the noncapital murder of Darlene Roberts and LIFE IN THE STATE PENITENTIARY for Robbery First Degree. Each of these sentences shall run concurrently each with the other.
He advised Barbara of her right to appeal. If she wished to appeal, he wrote, she must do so by giving notice of appeal within forty-two days from the date of the sentencing order. If she was an indigent and could not afford a lawyer to represent her on appeal, the court would appoint a lawyer for her and provide a free transcript of all proceedings in the case:
The Defendant will receive credit for the time during which she has been incarcerated on the present charge.
DONE this 29
th
Day of August, 2008,
David A. Rains, Circuit Judge
Instead of the death penalty, as recommended by the jury, Judge Rains had, after much thoughtful deliberation, decided to sentence Barbara to life in prison without parole. There was much relief on the part of the defense, but Barbara’s story was far from finished. The appeals process was just beginning, and it would be a long and complicated one.
65
Since Barbara Roberts was now categorized as being indigent, Judge David Rains notified a young Fort Payne, Alabama, attorney with an excellent reputation, Angela Cochran Morgan, that she was being appointed as Barbara’s attorney of record. Morgan would be handling Barbara’s appeals process, and she immediately notified District Attorney Mike O’Dell and Assistant District Attorney Bob Johnston of that appointment by filing an Entry of Appearance. Her first action on Barbara’s behalf was to file a motion to delay the transfer of the defendant to the state penitentiary pending appeal, in the hope that Judge Rains would allow the motion and give her time to obtain a trial transcript and confer with Barbara after reviewing it. Judge Rains consulted Cherokee County sheriff Jeff Shaver, who told the judge that he did not object to Barbara remaining in the Cherokee County Jail for the time being.
Judge Rains issued a court order that allowed Barbara to remain in the Cherokee County Jail pending further orders of the court, issued on September 18, 2008. Instead of an immediate transfer to Julia Tutwiler Prison for Women, Barbara would stay in jail in Cherokee County for a short time while she and Morgan began the work on her first appeal.
Angela Cochran Morgan lost no time in beginning the paperwork essential to the requirements of the appeals process. She immediately filed a motion for a new trial, serving copies to the court and to the district attorney’s office on September 29. Twelve points were included in the motion, which moved the court to set aside the verdict in the initial case and to grant Barbara a new trial on those grounds. They were as follows:
1.
The verdict was contrary to law.
2.
The verdict was contrary to the weight of the evidence.
3.
The defendant was denied a fair and impartial trial.
4.
The court erred in refusing to continue the trial of this matter, where the defendant was incompetent to assist her trial counsel in the preparation of her defense, and to understand fully and consider any plea offers made by the state.
5.
The court erred in admitting into evidence statements of the defendant.
6.
The court erred in allowing the testimony of witness Tonya Regalado.
7.
The court erred in allowing the admission of evidence gathered at the scene of the crime where the crime scene was not properly secured.
8.
For much of the defendant’s incarceration related to this case, she failed to receive adequate psychiatric care, which affected the outcome of this case.
9.
The court erred in failing to find the defendant not guilty by reason of mental disease or defect.
10.
The defendant did not receive effective assistance of counsel at trial, as guaranteed her by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 1, Section 6, of the Alabama Constitution of 1901. Without limiting the foregoing, the defendant set forth the following areas of ineffectiveness:
a.
. trial counsel failed to fully review discovery information provided by the state with the defendant prior to trial;
b.
trial counsel was not adequately prepared for trial because he had expected the trial to be continued;
c.
trial counsel failed to contact, interview, and/or subpoena a number of witnesses whose testimony could have led to the defendant’s acquittal on one or more of the charges in this case;
d.
trial counsel failed to obtain and offer at trial various evidence that could have led to the defendant’s acquittal on one or more of the charges in this case;
e.
trial counsel failed to obtain an independent psychiatric evaluation of the defendant by a certified forensic psychiatrist and to offer evidence of such evaluation at trial;
f.
trial counsel failed to offer evidence at trial of the defendant’s medical problems, which evidence could have led to the defendant’s acquittal on one or more of the charges in this case.
11.
Such other, further, and different grounds as this honorable court might find to grant this motion.
12.
The defendant reserved the right to supplement and amend this motion for new trial after the undersigned counsel had reviewed the entire transcript of the trial proceedings in this case.
Morgan added a postscript to the motion saying that she was the attorney who had been appointed by the court to represent Barbara following the pronouncing of her sentence; she had not, she said, represented Barbara at the trial.
She acknowledged that the court had made every effort to provide her with a transcript of the trial proceedings to use in the preparation of posttrial motions, but said that the court reporter had been unable to complete the lengthy transcript by the thirty-day deadline for filing postjudgment motions set out in Rules 20 and 24 of the Alabama Rules of Criminal Procedure.
Up to that time, Morgan said, she had been able to review only some of the pretrial hearings and an equally incomplete record of the jury organization. Until the remainder of the transcript could be delivered to her, she said, she had been forced to rely on the amount of the total transcript she had received, the court file, information obtained from Barbara, and limited information she had received from trial counsel Rodney Stallings in drafting the motion. Ms. Morgan stated that she expected to have the complete transcript before the motion was set for hearing.
On the same day, Ms. Morgan filed a motion for judgment of acquittal after verdict or judgment of conviction. This moved the court to set aside the verdict and any judgment of conviction and any sentence pronounced in Barbara’s case and to enter a judgment of acquittal on the grounds that the evidence presented in this case was insufficient to support a finding that Barbara was guilty beyond a reasonable doubt, and any other, further, or different grounds as the court might have to grant the motion.
With the prompt and efficient filing of such motions and her expressed desire for a thorough review of the materials and evidence in the case, it was apparent that Angela Cochran Morgan was taking her responsibility as Barbara’s court-appointed counsel very seriously.
66
In late September of 2008, Barbara again wrote to Judge Randall Cole and Judge David Rains. This time, however, the improvement in the composition, grammar, and consistency of her letter was apparent. Her train of thought remained steady, and she began by acknowledging the judges
for finding and talking to Ms. Angela Cochran Morgan to help me with my case. Thank you.
Barbara next asked the judges to allow her to have another trial.
For the longest time, I was not in a good mental frame of mind to help in my own defense,
she wrote. After a year of requesting the jail to arrange for her to be seen by a psychiatrist, she was seen for the first time around a month prior to the start of her trial, she said. The doctor had told her that it would take a few months for her to notice improvement from her changed medication. She’d had a second visit from the doctor in early September, and the medication was adjusted again, and she was starting to do much better, she said.
Barbara claimed that Stallings did not start preparing for her trial until around the time of the jury selection.
He was so sure that my trial would be delayed again and possibly take place after Dr. Robert Schiess’s trial,
she wrote.
As we both know, this did not happen.
She had wanted to tell that to the judge on her sentencing date, she said,
but Rodney advised me to say nothing.
Barbara then went on to list her own version of many of the other things in the trial that she thought had gone wrong.
The people who taught the shooting lessons that Barbara had attended had known she could not fire a shotgun, she said, and that information was not presented at trial, although Stallings had a letter from them to that effect. At the shooting range at the South River Gun Club, visitors had to sign in whether they were shooting or not, just to enter the gun range area. Barbara said she had only gone once.
Tonya Regalado had changed the statements she had made to investigators, giving conflicting information in the first and second versions of her story. Regalado, Barbara claimed, had over two hundred felonies on her record, and Regalado reported to the jail that attorney Stallings had threatened her life.
Stallings had been asked by Barbara to get the chief jailer to testify about why Regalado had to go on to prison instead of staying at Cherokee County Jail to serve her sentence. Another woman Barbara met in jail had known Regalado most of her life, and could testify about some of Regalado’s alleged crimes that, the woman told Barbara, had gone unpunished.
Regalado claimed that Barbara was her cellmate, but Barbara said that they were never in a “cell” together, since that was not how the jail was arranged. Regalado blamed Barbara for Regalado’s being sent on to the prison, and she had allegedly told many of the other women at the Cherokee County Jail that she was going to make sure Barbara got life or the death penalty.
Regalado had threatened Barbara’s life, Barbara claimed, by saying that Barbara was going to Tutwiler, and when she got there, Tonya was going to kill her and “stick a pin” in her neck.
Barbara was held without her medications from the time she was arrested until the time she left jail on bond. Since she was bipolar, she claimed, this lack of medication caused her severe decompensation problems. The doctor she was seeing in Conyers, Georgia, could testify as to how she would act without her medication, Barbara said, and he had written a letter saying he didn’t see how she could have planned and carried out a murder.
One of the investigating officers, Barbara claimed, had “come up” with stories to bring the charges against her to capital murder after being told of and shown the bruises on her legs from a beating she allegedly suffered while in jail.
The weather reports from the
Rome News-Tribune
and pictures in the newspapers could confirm that there was severe weather in the area on the night of the murder and the following day. This, Barbara claimed, would have compromised the crime scene, but she said the prosecution had stated on several occasions about the sunshine and good weather at the crime scene at that time.
The crime scene was never secured, Barbara claimed, and photos from the
Rome News-Tribune
showed trucks inside the crime scene. Barbara also alleged that a security guard from Temple-Inland, who, she claimed, was a former FBI agent, had been allowed to come onto the scene and help with the investigation.
Her defense, Barbara said, had failed to enter the report from her surgeries and her nerve conduction studies outlining the nerve damage in her neck, shoulders, and hand.
From the home of Vernon and Darlene Roberts, Barbara said, all of County Road 941 could be seen, from the turn onto the road, all the way to the house.
It would have been close to impossible for [Vernon] not to see Darlene’s car on the road or in the field,
she wrote.
I wanted the jury to go out to the crime scene to see it for themselves.
When the Nissan Murano was found at the crime scene, Barbara claimed, witness Jason Sammons reported that the windows on the car were down and they put their hands in the windows. When they came back to the scene, the windows were up, Barbara said, and there were no keys. The car had electric windows, she said, and the garage door opener was not in the car, either.
Barbara claimed that her ex-husband had lied on the witness stand about several things, including his claim that he had paid her medical expenses from her serious auto accident.
He did not pay a cent,
Barbara wrote.
I bet he has no canceled checks or receipts.
If Darlene had defense wounds, Barbara wondered, wouldn’t they have been on her hand, and not on her arms? The hair found on the butt pad of the shotgun, Barbara claimed, was tested, and those tests showed that it was not hers, nor was it that of Schiess. She also thought the gun analysis on the shotgun shells had shown that two guns were used. Witness Jason Sammons, Barbara claimed, had reported two gunshots were heard after about a ten-minute wait after the initial shot or shots were heard.
Every time Barbara saw Agent Brent Thomas and Investigator Mark Hicks, she wrote, they asked her if she was okay because they were
afraid for my safety and life from Mr. Schiess,
and at one time asked her if she needed to go into protective housing.
Attorney Steve Lanier’s daughter had made copies of Barbara’s answering machine recordings from Vernon’s calls, she said. Barbara had not made them.
One of the investigators had claimed Barbara was lying about being in West Rome instead of Conyers to see a banker, she said. The first recorded message on the answering machine tape made by Lanier’s daughter was from a woman named Tiffany, from Housing in Rome, speaking of Barbara’s appointment with the banker.
If Barbara’s medication had been withheld after she asked about them, but was told no, did that make her confessions coerced? she asked.
I am praying that you will see it in your heart to allow me another trial with this new lawyer,
Barbara concluded,
and allow me to stay in Cherokee County.
Barbara had covered a long string of questions, allegations, and other statements in this letter, but it was far more cohesive and better thought-out than any of her previous efforts at communicating with the court. It was evident that her condition had, in fact, improved to an extent, and she would be far better able to assist her new attorney with her defense.