Burgess v. State
Decision Date | 22 August 1997 |
Citation | 723 So.2d 742 |
Parties | Alonzo Lydell BURGESS v. STATE. |
Court | Alabama Court of Criminal Appeals |
John R. Benn, Sheffield, for appellant.
Bill Pryor, atty. gen., and Tracy Daniel and Michael Billingsley, deputy attys. gen., for appellee.
Alonzo Lydell Burgess was convicted by a Jefferson County jury of the attempted murder of LaRico Devon Long, § 13A-4-2, Ala. Code 1975, and of the capital murder of Shelia Nnodimele, Alexis Nnodimele, and Latoria Long by one act or pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Ala.Code 1975. The jury recommended, by an 8-4 vote, that Burgess receive a sentence of life imprisonment without parole. The trial court sentenced Burgess to death. Burgess appeals from the capital murder conviction and death sentence. We affirm.
The trial court's sentencing order summarized the evidence presented at the guilt phase as follows:
We observe at the outset that Burgess did not object at trial to many of the instances he now claims to be reversible error. Although this failure to object does not preclude appellate review under the plain error standard, it weighs against any claims of prejudice. Taylor v. State, 666 So.2d 36, 49 (Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala., 1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996). "The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant." Ex parte Trawick, 698 So.2d 162 (Ala.1997).
Burgess contends that the indictment against him was invalid because the trial court failed to follow circuit court rules governing the selection of grand jury forepersons. He argues also that the trial and district attorney should have been disqualified from participating in the hearing on this issue. Burgess is not entitled to relief on his claims.
Before trial, Burgess filed a motion to dismiss the indictment against him on grounds that there had been a systematic underrepresentation of blacks, women, and young adults in the selection of grand jury forepersons in Colbert County.1 He also moved that the trial judge disqualify herself and the district attorney from hearing any and all matters he raised regarding the selection of the grand jury foreperson. The trial court entered orders denying the motions to disqualify, and set the discriminatory selection claim for a hearing.
At the hearing, the Colbert County clerk testified that before Burgess was indicted, a new procedure for selecting grand jury forepersons had been implemented, and that under the new procedure a foreperson was randomly selected from the group of grand jurors. The parties then stipulated and the trial judge stated for the record that the 18 grand jurors who heard the appellant's case had been randomly selected. Of the 18 grand jurors, only one was black; the trial judge acknowledged that she selected that individual to be the grand jury foreperson as, the judge stated, "affirmative action to prevent any defects there may have been in the selection of grand jury forepersons during the prior years." Defense counsel then stated that because of the new selection procedure, he would not present historical data, but rather his motion to dismiss the indictment would be limited to whether "affirmative action" was a permissible consideration in the selection of grand jury forepersons. The trial court ultimately denied the motion to dismiss the indictment.
On appeal, Burgess argues that, while the trial court's desire to provide minority representation on the grand jury was admirable, the court's actions defeated the purpose behind the recent change to a random selection of forepersons and improperly deviated from the "approved" procedure. Burgess also argues that the court's "affirmative action plan" discriminated against whites and women. The State contends that Burgess failed to establish a prima facie case of discrimination in the selection of grand jury forepersons, and that the error, if any, was harmless because the court's selection of the grand jury foreperson did not violate Burgess's right to a fair trial.
To prove a prima facie case of discrimination in the selection of a grand jury foreperson, a petitioner must show: 1) that the group alleged to be discriminated against is a distinct group, singled out for different treatment; 2) the degree of underrepresentation of the group over a significant period of...
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