Brownlee v. State
Decision Date | 13 January 1995 |
Docket Number | CR-91-1358 |
Citation | 666 So.2d 91 |
Parties | Virgil Lee BROWNLEE v. STATE. |
Court | Alabama Court of Criminal Appeals |
Maurice R. Mitts, J. Dennis Faucher, Philadelphia, PA, for appellant.
James H. Evans, Atty. Gen., Jack Willis, Asst. Atty. Gen., for appellee.
The appellant, Virgil Lee Brownlee, was convicted of capital murder and was sentenced to death. This conviction and sentence were affirmed on direct appeal. Brownlee v. State, 545 So.2d 151 (Ala.Crim.App.1988), aff'd, 545 So.2d 166 (Ala.1989), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989), reh. denied, 493 U.S. 986, 110 S.Ct. 527, 107 L.Ed.2d 527 (1989). The appellant filed a petition under the Rule 20, Ala.R.Crim.P.Temp. 1 The circuit judge who presided over the appellant's trial also presided over the evidentiary hearings on this petition, which were held on December 18, 1990, April 9, 1991, and August 20, 1991. On April 2, 1992, the trial judge denied the appellant's petition in a written order. This appeal followed.
The appellant, in his brief on appeal, claims that this Court must search this record for plain error, pursuant to Rule 45A, Ala.R.App.P. However, Cade v. State, 629 So.2d 38, 41 (Ala.Crim.App.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).
In addition, "[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed." State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App.1993).
The appellant tries to preserve issues not presented in his brief on appeal by referring to these issues, contained in his petition, in footnote 3 of the brief. Burks v. State, 600 So.2d 374, 380 (Ala.Crim.App.1991). We will not review issues not listed and argued in brief. Burks.
The appellant claims that the trial court erred in not granting this petition and ordering a new trial because, he says, the testimony at trial of the state's chief witness, Willie Goodgame, was allegedly perjured. This claim is based on Goodgame's recantation of his trial testimony. The appellant relies on Ex parte Frazier, 562 So.2d 560 (Ala.1989) to support his argument that his conviction and sentence should be reversed and a new trial granted.
A brief overview of the facts of this case is helpful. On May 19, 1986, three individuals entered Jodie's Lounge in Birmingham and robbed the bar and its patrons and shot and killed the owner, Lathen Aaron Dodd. Willie Goodgame and Robert Harris were positively identified by eyewitnesses as participants, but none of the victims could identify the appellant either as a robber or as the triggerman. Goodgame was allowed to plead guilty to felony murder and he was sentenced to four consecutive life sentences, in exchange for his testimony against Robert Harris and the appellant. Goodgame's testimony against the appellant was summarized as follows in Brownlee v. State, 545 So.2d 151, 154-55 (Ala.Crim.App.1988):
Brownlee v. State, 545 So.2d at 154-55.
The standard applied in death penalty cases where a defendant seeks a new trial on the ground of perjured testimony is set out in Ex parte Frazier, 562 So.2d 560, 570 (Ala.1989):
"In order to grant a motion for a 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; and 3) that the movant is not relying on evidence of which he was aware at trial and which he consciously decided not to use to challenge the testimony of the perjured witness."
See also Hays v. State, 599 So.2d 1230 (Ala.Crim.App.1992); McMillian v. State, 616 So.2d 933 (Ala.Crim.App.1993).
"With regard to the standard, 'a presumption of correctness will continue to be indulged in favor of the trial court's factual findings, and the trial court's ruling on the motion will be upheld on appeal unless it is clearly erroneous.' "
The nature of Willie Goodgame's recantation is best illustrated by the following testimony from a deposition taken on May 28, 1991:
To continue reading
Request your trial-
Lewis v. State
...raised in [the] petition were not pursued on appeal and, therefore, those claims are deemed abandoned. See, e.g., Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995) ('We will not review issues not listed and argued in brief.')."). 4. Lewis's defense team consisted of attorneys Jame......
-
Woods v. State
...bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.") Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995). When reviewing the circuit court's rulings on the claims raised in [Walker's] postconviction petition, we apply an abu......
-
Miller v. State, CR-08-1413
...procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.'" Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1 995) . When reviewing the circuit court's ruling on the claims raised in Miller's postconviction petition, w......
-
Williams v. State
...including those in which the death penalty has been imposed.' State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App. 1993)." Brownlee v. State, 666 So.2d 91, 93 (Ala. Cr.App.1995). "To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performanc......