Burton v. State

• Citation: 651 So.2d 641
• Decision Date: 30 December 1993
• Docket Number: CR-91-1185
• Parties: Charles Lee BURTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 641

651 So.2d 641

Charles Lee BURTON v. STATE.

CR-91-1185.

Court of Criminal Appeals of Alabama.

Dec. 30, 1993.

Rehearing Denied March 4, 1994.

William J. Willingham, Talladega, and Larry Morris, Alpine, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins and Kenneth Nunnelly, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Charles Lee Burton, was convicted of murder made capital because it was committed during the course of a robbery in the first degree. § 13A-5-40(a)(2), Code of Alabama 1975. The jury unanimously voted for the death penalty. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The state's evidence tended to show that on August 16, 1991, six men--the appellant, Derrick DeBruce, ¹ Deon Long, LuJuan McCants, Willie Brantley, and Andre Jones--robbed the occupants of the Auto Zone automobile parts store in Talladega, Alabama. During the course of the robbery, a customer, Doug Battle, was shot. He died as a result of a gunshot wound to the lower back, which pierced his chest. The trigger man was Derrick DeBruce.

The manager of the store, Larry McCardle, was at the cash register when an individual he identified as the appellant entered the store, purchased some items, and asked him for the location of the restroom. McCardle testified that at this time another customer, whom he identified as DeBruce, was in the store. After the appellant started walking to the restroom, DeBruce pulled a gun and told everyone in the store to get on the floor. At this point, the appellant grabbed McCardle, pointed a gun at him and told him to take him to the safe. McCardle complied. Moments later McCardle heard yelling and gunshots.

One of the appellant's codefendant's, LuJuan McCants, testified that the six men involved in the robbery were at Barbara Spencer's ² house in Montgomery on April 16 talking about committing a robbery. He said that Deon Long, Charles Burton, and Derrick DeBruce left the Spencer house to get some guns. They agreed to meet at the appellant's house. They left the appellant's house in two cars and headed toward Birmingham. They exited the interstate at Sylacauga and proceeded to Talladega. In Talladega, they went to a carwash and discussed robbing the Auto Zone store. They left one car at the carwash and they all proceeded in the other car to the Auto Zone.

McCants testified that the appellant organized the criminal activity and that he told the others what to do during the robbery. The appellant told McCants and Long to watch the door and told them that if he left the store that they should forget the robbery plans. McCants testified that the appellant also told them that if anyone caused any trouble in the store to let him handle the situation. McCants also testified that everyone who went into the store had a gun except Deon Long. McCants said that they forced everyone in the store to get on the floor and that they then took their valuables. The victim, Battle, walked in while the robbery was in progress and McCants told him to get on the floor. Battle was having some difficulty getting on the floor and an argument ensued between DeBruce and Battle. DeBruce hit Battle and he fell to the ground. DeBruce then shot Battle in the back while he was lying face-down on the floor. McCants testified that all of the robbers had either left the store or were about to leave when DeBruce shot Battle. He said that the appellant was among those who had already left the store at the time of the shooting. After all six left the store, they jumped in their car, picked up the other car at the carwash where they had left it, went to Barbara Spencer's house and divided the money.

A forensic examination of the Auto Zone store revealed 17 of the appellant's fingerprints. These prints were found on the items that McCardle had said that the appellant purchased before the robbery and on various other items in the store.

Barbara Spencer testified that before the robbery, the six men had been at her house discussing how to commit a robbery. She said that they left her house in separate cars and that the appellant and Derrick DeBruce were riding together. She testified that they returned to her house later and appeared to be upset. They had a large amount of money and the appellant was telling the others how to divide it. Spencer said that they gave her $100 but that she gave the money to McCants.

The appellant raises many issues on appeal. A majority of the issues raised by the appellant were not brought to the attention of the trial court. However, because this case involves the death penalty, this court is obliged, under Rule 45A, A.R.App.P., to search the record for plain error.

"In all cases in which the death penalty has been imposed, the court of criminal appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

Rule 45A, A.R.App.P. "[T]he plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United State v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982).

I

The appellant initially argues that the trial court erred in denying his motion for a change of venue. He contends that because of the extensive pretrial publicity he was unable to obtain a fair trial in Talladega County.

"In order to meet the burden of showing the necessity for a change of venue due to pretrial publicity on the grounds of community saturation, the appellant must show more than the fact 'that a case generates even widespread publicity.' " Oryang v. State, 642 So.2d 979, 983 (Ala.Cr.App.1993).

"Newspaper articles alone would not necessitate a change in venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible. Patten v. State, 246 Ala. 639, 21 So.2d 844 [1945]."

Thompson v. State, 581 So.2d 1216, 1233 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).

This court has stated that "the appropriate method to establish the existence of adverse publicity or actual prejudice is through voir dire examination of potential jurors." Hart v. State, 612 So.2d 520, 527 (Ala.Cr.App.), aff'd, 612 So.2d 536 (Ala.1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993).

In this case the court questioned the prospective jurors in groups of 15. ³ At least one-half of the members of each group were at least aware of the facts surrounding the robbery and murder. Each veniremember who had heard anything about the case was individually questioned. The majority of the prospective jurors could not cite any specifics concerning the murder. All but one said that what they had heard would not affect their ability to decide the case impartially upon the evidence presented at trial. The one prospective juror who did respond that she had been biased by what she had heard was excused for cause. The appellant has failed to show that the venire was so tainted that he was unable to obtain a fair trial.

The Supreme Court, in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961), explained:

"To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

Jurors are not required to be "totally ignorant of the facts and issues involved." Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975).

"[T]he determination of whether or not to grant a motion for a change of venue is generally left to the sound discretion of the trial judge, because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial."

Nelson v. State, 440 So.2d 1130, 1132 (Ala.Cr.App.1983). See also Trahan v. State, 450 So.2d 1102 (Ala.Cr.App.1984). The trial court committed no error in denying appellant's motion for a change of venue.

II

The appellant next contends that the trial court erred in holding a hearing on pre-trial motions in his absence. He contends that this action denied him his constitutional right to a fair trial. The appellant did not object to the court's holding of the hearing without him present. Thus we must determine whether plain error exists.

It appears from the record that motions on behalf of one of the appellant's co-defendant, DeBruce, were also argued at this pre-trial hearing. The motion hearing was brief and concerned certain evidentiary questions. Defense counsel discussed obtaining a videotape of an initial appearance hearing and requested an investigator, a pre-sentence expert, and information on the criminal backgrounds of McCants, Long, and Barbara Spencer. Defense counsel also asked the state if co-defendants McCants and Long had been offered life in prison in exchange for their testimony. No testimony was taken at this hearing. The hearing concerned only evidence that defense counsel wished to obtain from the state.

Judge Bowen addressed this very issue in his opinion affirming DeBruce's conviction and sentence. Judge Bowen stated:

"In Harris v. State, [Ms. 3...