Burgess v. State

• Decision Date: 30 September 2005
• Docket Number: No. CR-02-0977.,CR-02-0977.
• Parties: Alonzo L. BURGESS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

962 So.2d 272

Alonzo L. BURGESS v. STATE of Alabama.

No. CR-02-0977.

Court of Criminal Appeals of Alabama.

September 30, 2005.

Opinion Granting Rehearing November 23, 2005.

Certiorari Denied February 23, 2007 Alabama Supreme Court 1050290.

Cathleen I. Price, Montgomery, for appellant.

Troy King and William H. Pryor, Jr., attys. gen., and Jon B. Hayden and Jasper B. Roberts, Jr., asst. attys. gen., for appellee.

WISE, Judge.

The appellant, Alonzo L. Burgess, an inmate on death row at Holman Correctional Facility, appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P., attacking his capital-murder conviction and death sentence.

In 1994, Burgess was convicted of capital murder for the killing of Shelia Nnodimele and two of her children, Latoria Long and Alexis Nnodimele, "by one act or pursuant to one scheme or course of conduct," a violation of § 13A-5-40(a)(10), Ala.Code 1975. Burgess was also convicted of attempting to murder Nnodimele's third child, LaRico Long, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. The jury recommended, by a vote of 8 to 4, that Burgess be sentenced to life imprisonment without the possibility of parole. The circuit court chose not to follow the jury's recommendation and instead sentenced Burgess to death. Burgess's conviction and sentence were affirmed on direct appeal. See Burgess v. State, 723 So.2d 742 (Ala.Crim.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999). The direct appeal was final when we issued the certificate of judgment on November 10, 1998.

On March 15, 2000, Burgess filed a Rule 32 petition.¹ In September 2000, Judge Tompkins dismissed many of the claims presented in the petition after concluding that they were procedurally barred. Burgess filed an amended Rule 32 petition in February 2002. On February 25, 2002, an evidentiary hearing was held before Judge Hughston. On January 17, 2003, the circuit court issued an order denying the Rule 32 petition. This appeal followed.

The State's evidence at Burgess's trial tended to show that on January 30, 1993, Burgess called out of the door of Shelia Nnodimele's mobile home to the neighbors across the road and asked them to come over to the mobile home. Shelia and Burgess had been living together in Shelia's trailer with her three children. As the neighbors approached Shelia's trailer they saw that Burgess was holding a shotgun. Before they could reach the trailer Burgess pointed the shotgun at his chest and fired.

Police discovered a handwritten suicide note that was subsequently identified as having been written by Burgess. The note said: "The reason for this is because the relationship wasn't ... [not legible] and I didn't have her mother or father on my side, and at first, I really tried to get to know them." The note also said to look in the bedrooms.

In one bedroom police discovered the bodies of Burgess's girlfriend, Shelia, and her 14-year-old daughter Latoria. In the other bedroom police discovered the body of 8-year-old Alexis and her 2-year-old brother, LaRico. LaRico was still breathing and was rushed to a local hospital. He recovered.

The coroner testified that the cause of Shelia's death was blunt-force injuries, strangulation, and suffocation; the cause of Latoria's death was cranial trauma and strangulation; and the cause of Alexis's death was cranial trauma. The coroner further testified that all three victims had extensive injuries to their heads and that all of the injuries were similar; they had been made by the same weapon. The apparent murder weapon was a bumper-jack assembly post.

Standard of Review

Burgess appeals the denial of his postconviction petition. According to Rule 32.3, Ala.R.Crim.P., the petitioner has the burden of proving his claims by a preponderance of the evidence.

When reviewing a circuit court's ruling on a postconviction petition we use an abuse-of-discretion standard. See Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim.App.1992). However, "[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). We can affirm a circuit court's ruling if it is correct for any reason, even if not the reasons stated in the circuit court's order. See Reed v. State, 748 So.2d 231, 233 (Ala. Crim.App.1999).

Moreover,

"`"[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence." Thompson v. State, 615 So.2d 129 (Ala.Crim.App.1992).' Cade v. State, 629 So.2d 38, 41 (Ala.Crim.App.1993), cert. denied, , 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)."

Brownlee v. State, 666 So.2d 91, 93 (Ala. Crim.App.1995).

I.

Many of the claims Burgess raises on this appeal relate to assertions in his Rule 32 petition that he was deprived of the effective assistance of counsel at his capital-murder trial and at sentencing.² When reviewing claims of ineffective assistance of counsel we apply the two-pronged standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order for the petitioner to prove that he has been deprived of the effective assistance of counsel the petitioner must show (1) that counsel's performance was deficient and (2) that he was prejudiced by the deficient performance. As the United States Supreme Court stated in Strickland v. Washington:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."

466 U.S. at 689, 104 S.Ct. 2052 (citations omitted). The court further explained:

"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."

466 U.S. at 690-91, 104 S.Ct. 2052.

"Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim available at trial and on appeal. Holladay v. State, 629 So.2d 673 (Ala.Cr. App.1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); McCoy v. Lynaugh, 874 F.2d 954, 965-66 (5th Cir.1989). Rather, counsel must be given some discretion in determining which claims possibly have merit, and thus a better chance of success, and which claims do not have merit, and thus have little chance of success. Heath v. State, 536 So.2d 142 (Ala.Cr.App.1988); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)."

Davis v. State, 720 So.2d 1006, 1014 (Ala. Crim.App.1998). "[C]onviction of a client does not prove the lack of skill or zeal on the part of counsel." Taylor v. State, 291 Ala. 756, 760, 287 So.2d 901, 906 (1973).

At trial Burgess was represented by attorneys John Benn and Cliff Wright. Neither attorney was called to testify at the Rule 32 proceedings. The record indicates that Benn executed an affidavit concerning the case. The affidavit contains the following remarks:

"On May 8, 2001, I had scheduled a meeting at 1:00 p.m. with Deputy Attorney General Jon Hayden to discuss the ineffective assistance of counsel claims contained in Burgess's petition. Prior to our meeting, I had informed Mr. Hayden that I would need some specific authority that the attorney-client privilege was waived concerning these proceedings. Mr. Hayden assured me that the privilege was waived regarding allegations of ineffectiveness contained in the petition.

"Approximately one hour before our scheduled meeting, Burgess's Rule 32 counsel, Cathleen Price, contacted me. Ms. Price stated that she wanted me to understand that Burgess had not waived his attorney-client privilege regarding my representation. Ms. Price further indicated that I was permitted to talk to her or Burgess concerning any confidential communications but that I was not to disclose any such communications to Mr. Hayden.

"Based on Ms. Price's representation to me that Burgess had not waived his attorney-client privilege, I informed Mr. Hayden that I would not discuss any allegations of ineffective assistance...