Burgess v. State

• Decision Date: 20 November 1998
• Citation: 827 So.2d 134
• Parties: Willie BURGESS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

827 So.2d 134

Willie BURGESS, Jr. v. STATE.

CR-93-2054.

Court of Criminal Appeals of Alabama.

November 20, 1998.

Rehearing Denied February 5, 1999.

Thomas M. DiGiulian, Decatur; and William Middleton, Decatur, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

COBB, Judge.

This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on August 7, 1998.

Willie Burgess, Jr., appeals from his conviction of capital murder, see § 13A-5-40(a)(2), Ala.Code 1975. Burgess was tried before a jury on the charge that he intentionally murdered Louise Crow during a first-degree robbery. Following a guilty verdict, the jury recommended, by an 11-1 vote, that Burgess be sentenced to death by electrocution. On August 24, 1994, the trial court sentenced Willie Burgess, Jr., to death. This appeal follows. We affirm.

The State's evidence tends to show the following, as set out in the trial court's sentencing order:

"[O]n the morning of January 26, 1993, [Burgess] rode his bicycle to the Decatur Bait [and Tackle] Shop located at 214 Sixth Avenue, S.E., Decatur, Alabama, with the intention of committing a theft. He entered the shop and had a dialogue with the owner, Mrs. Louise Crow. The defendant then left the shop, returned home, changed clothes and walked back to the shop. The defendant again entered the shop, pulled out a .25 caliber semi-automatic pistol, demanded money from the cash drawer and ordered the owner to enter the shop's bathroom. Once the victim had entered the bathroom, the defendant shot her in the face at close range, killing her. He then stole the victim's car, picked up his girlfriend and her child and headed toward Huntsville, Alabama. The defendant was arrested in route to Huntsville, and at the time of arrest he was in possession of the victim's car, a .25 caliber semi-automatic pistol and a quantity of currency."

After being returned to the custody of the Decatur police, Burgess made an admission to police detectives. Then, as he was walked through the parking lots between the Decatur City Hall and the Morgan County Jail, Burgess, while being videotaped by a cameraman for a local television station, made another admission in response to questions from reporters in which he admitted killing Mrs. Crow.

I.

Burgess argues that the trial court erred in denying his challenges for cause against two veniremembers, Mr. H. and Mr. C. because, he argues, both had fixed opinions of his guilt and, therefore, could not be impartial jurors.

When defense counsel was questioning the panel that included Mr. H. and Mr. C., he asked them whether they had heard anything about the case from any source. Mr. C. answered:

"The only thing I've heard about it—I used to be a part-time cab driver back year before last and last year—is just from customers. Sometimes they talk about it generally. And on TV and newspaper. Other than that, that's it."

(R. 398-99.) When asked the same question, Mr. H. answered:

"What I've seen on TV and read in the paper and heard folks talking, but it was people who didn't know any more than I did from reading the papers."

(R. 400.)

After asking the veniremembers what they knew about the case, defense counsel then asked them if they had formed an opinion about his client's guilt or innocence. When defense counsel asked Mr. C. the question, the following dialogue took place:

"MR. LAVENDER (defense counsel): Mr. C.?

"MR. C.: All I can go by is just what hearsay and that hearsay don't mean nothing.

"MR. LAVENDER: I understand, except the problem is sometimes we know some things that we shouldn't know. We know some things that may not be true. That's why we call it hearsay and that's why it's not admissible in a court of law.

"MR. C.: Well, being a cab driver, you hear more than what you normally should hear and a lot of it's been exaggerated more than it should be, so I can't, you know, say—honestly, I could—yes or no, just because of what I've heard.

"MR. LAVENDER: Let me ask you this question then, Mr. C. Suppose that you were a juror in this case and the district attorney put on his case and I put on my case, and you went to deliberate and you got to thinking, `Well, you know, I know something about this case that he didn't tell me, that the D.A. didn't tell me and that Mr. Lavender didn't tell me.' Could you just forget about that?

"MR. C.: No.

"MR. LAVENDER: So if you were possessed of some facts through what you've seen, read, or heard, that didn't come out in this courtroom, you couldn't ignore those facts?

"MR. C.: I would bring it to his attention that I've heard about it. Let's say he brought it up to a certain stance that it rung a bell, something was said. I'd bring it to attention.

"MR. LAVENDER: Of your fellow jurors?

"MR. C.: Yes.

"MR. LAVENDER: Even if the court had told you to disregard everything you've seen, read, heard about this case except what you heard in this courtroom?

"MR. C.: No, I wouldn't say it then.

"MR. LAVENDER: You would keep it to yourself?

"MR. C.: Yes.

"MR. LAVENDER: You think you could exclude that and say, `Well, I don't know that. Let me put this out of my mind and decide this case on just these facts.'

"MR. C.: I couldn't say."

(R. 407-10.) Then, when Mr. H. was asked the same question, the following dialogue occurred:

"MR. LAVENDER: You don't know anything about it, Mr. H.?

"MR. H.: What I seen on the TV, I'm sure will be discussed in this trial, but I have opinions based on that, of course.

"MR. LAVENDER: What is that opinion?

"MR. H.: That opinion is that he did the deed.

"MR. LAVENDER: What if some of those things that you assumed will be discussed in this trial aren't discussed in this trial—some things you've seen on TV, or heard. Would you be able to put those things out of your mind?

"MR. H.: I hope I would be able to make a decision based on what I hear in here, but I don't know that I could put it out of my mind.

"MR. LAVENDER: And again, I'm sure you hope that, but, you know, I need to get a little bit past that. And that is—and you heard me ask the questions earlier—if there was something— say you're on the jury; the 12 of you deliberate—the 14 of you, I suppose, are deliberating and there's something about this case that you heard that was on television that has caused you to form this opinion you've got, and Mr. Burrell [the prosecutor] never presented that evidence to you and neither did I. Would you be able to ignore it?

"MR. H.: I can't tell you for sure that I could.

"MR. LAVENDER: The things that you've seen or heard, I assume, [that] indicated my client was guilty?

"MR. H.: Yes.

"MR. LAVENDER: Do you have an opinion of his guilt or innocence such that you're biased against him?

"MR. H.: No, I don't think that—I don't think that's the case. I don't think that my opinion is so strong that I would be—assumed to be biased before the trial begins.

"MR. LAVENDER: Would you require some kind of proof from me, the defense, to prove my client is not guilty?

"MR. H.: No."

(R. 414-17.) Before this line of questioning, the prosecutor had asked the venire the following question:

"I want to ask you, do any of the 10 of you who have seen or read something about this case—I'm not asking if you can forget it. I don't think anybody can just wipe something out of their mind, what they've heard or read or know. But what I do want to ask you, are there any of you 10, because of what you've read or heard on television, who do not believe that you can serve as a juror in this case and base your verdict on the evidence that you hear in here? In other words, would you already have your mind made up regardless of what we do? Any of you feel like you would?"

Although two other veniremembers answered that they could not fairly serve as jurors because of what they knew, Mr. C. and Mr. H. did not. (R. 365.) Nor did either veniremember indicate that he had a fixed opinion as to the guilt or innocence of Burgess when questioned by the trial court.

Burgess also argues that Mr. H., a high school choral director, was aware that Burgess's cousin had been charged in the "brutal murder" of one of Mr. H.'s former students, thus giving Mr. H. an additional reason to be biased against Burgess. A review of the record shows that Mr. H. never indicated he knew the Burgess family was connected to the murder of his former student, even though at one point the prosecutor thought Mr. H. had done so. When the prosecutor asked the venire whether any of them had close friends who had been victims of crimes, Mr. H. responded, "I had a student that was murdered less than a year ago." (R. 360.) No further information was garnered from Mr. H. about what he knew about that murder or whether he harbored any bias against Burgess because of a possible family connection with the crime. We are bound by the record and will not assume that Mr. H. was biased, based on allegations or arguments in a brief to this court reciting matters not disclosed by the record. Harris v. State, 420 So.2d 812, 816 (Ala.Cr.App.1982).

"Section 12-16-150, Code of Alabama 1975, provides that, when a juror `has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict,' a challenge for cause is proper. Nobis v. State, 401 So.2d 191 (Ala.Cr. App.), cert. denied, 401 So.2d 204 (Ala. 1981). The juror must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. The juror's opinion must be fixed to the point that it would bias the verdict which the juror would be required to render. Johnson v. State, 356 So.2d 769 (Ala.Cr.App. 1978); McCorvey v. State, 339 So.2d 1053 (Ala.Cr.App.), cert. denied, 339 So.2d 1058 (Ala.1976); Tidmore v. City of Birmingham, 356 So.2d 231 (Ala.Cr. App.1977), cert. denied, 356 So.2d 234."

Thomas v. State, 539 So.2d 375, 380 (Ala. Cr.App.), aff'd, 539 So.2d 399 (Ala.1988), cert. denied, 491 U.S. 910, 109 S.Ct....