Ex Parte Burgess, 1070635.

• Decision Date: 05 September 2008
• Docket Number: 1070635.
• Citation: 21 So.3d 746
• Parties: Ex parte Roy BURGESS, Jr. (In re Roy Burgess, Jr. v. State of Alabama).
• Court: Alabama Supreme Court

21 So.3d 746

Ex parte Roy BURGESS, Jr. (In re Roy Burgess, Jr. v. State of Alabama).

1070635.

Supreme Court of Alabama.

September 5, 2008.

Rehearing Denied November 21, 2008.

Aaryn M. Urell, Equal Justice Initiative of Alabama, Montgomery, for petitioner.

Troy King, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.

LYONS, Justice.

Roy Burgess, Jr., petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Morgan Circuit Court's denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. We issued the writ of certiorari to review only whether Burgess's claims of juror misconduct, arising from the alleged failure of several jurors to accurately answer questions during the voir dire examination, are precluded under Rule 32.2(a)(3) and (5), Ala. R.Crim. P. For the reasons discussed below, we hold that the claims are not precluded, and we reverse the judgment of the Court of Criminal Appeals and remand the case.

I. Facts and Procedural History

Burgess was convicted of capital murder and was sentenced to death in 1994. See § 13A-5-40(a)(2), Ala.Code 1975. On direct appeal, the Court of Criminal Appeals affirmed Burgess's conviction and sentence. Burgess v. State, 811 So.2d 557 (Ala.Crim.App.1998). This Court affirmed Burgess's conviction, reversed his death sentence, and remanded the cause to the Court of Criminal Appeals with instructions for that court to remand the cause to the trial court for resentencing. Ex parte Burgess, 811 So.2d 617 (Ala.2000).

In accordance with this Court's instructions, the Court of Criminal Appeals remanded the cause to the trial court for that court to reevaluate Burgess's sentence. Burgess v. State, 811 So.2d 633 (Ala.Crim.App.2000). On remand, the trial court resentenced Burgess to life imprisonment without the possibility of parole; the Court of Criminal Appeals affirmed that sentence. Burgess v. State, 811 So.2d 633 (Ala.Crim.App.2001) (opinion on return to remand).

Burgess first filed a Rule 32 petition for postconviction relief in July 2002. He then amended the petition in January 2003 and again in November 2004. Claim 13 of the petition, as last amended, asserted that "[Burgess's] right to [an] impartial jury was violated by jurors' consideration of extraneous evidence and failure to accurately answer voir dire questions." Burgess supported this claim as follows:

"110. . . . Juror T.B. failed to disclose that he knew one of the State's witnesses, Angela Casey, and that he had a family member who worked in law enforcement, as a military policeman and later in a sheriff's department in North Carolina. Juror L.T. failed to disclose that she knew a number of police officers. A very close friend whom L.T. refers to as her `granddaughter' worked for the police department at the time of trial, yet L.T. did not reveal this information during voir dire.

"111. Juror D.C. failed to reveal that he had been the victim of a crime in 1985. He further failed to tell the court that he testified for his Lieutenant in court martial proceedings while he was in the Army. Juror L.T. failed to disclose that she had been a victim of crime when her business was burglarized. Juror B.W. failed to disclose that she was the victim of a burglary. Juror R.W. also failed to reveal that she was the victim of a crime. Juror T.W. did not reveal that his aunt had been raped and severely beaten.

"112. Juror F.D. failed to tell the court that she had children who had attended Austin High School.¹ Of the two veniremembers who disclosed that they had a child or grandchild who attended Austin High School, one was removed for cause on a defense motion and one was peremptorily struck by the defense.

"113. Juror C.H. failed to disclose that she had a personal relationship with the district attorney and that he had assisted her in a personal matter before the trial. Although [Burgess's] Motion to require the district attorney to disclose past or present associations or relationships with prospective jurors was granted, the district attorney did not reveal that he had met privately with C.H. and helped her to resolve a personal matter. Veniremembers who disclosed even remote associations with the district attorney or members of his family were not seated on the jury."

(Citations to the record omitted.)

The trial court summarily dismissed Burgess's Rule 32 petition. In its order, the trial court found that the claims of juror misconduct were precluded from review under Rule 32.2(a)(3) and (5), Ala. R.Crim. P., because the claims were not raised on appeal or in Burgess's motion for a new trial. Rule 32.2, Ala. R.Crim. P., "Preclusion of Remedy," provides:

"(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:

". . . .

"(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or

". . . .

"(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b)."

The trial court further found that "Burgess has presented no evidence to support the allegations contained in his petition for relief pursuant to Rule 32, A[la]. R.Crim. P." Burgess appealed the order dismissing his Rule 32 petition to the Court of Criminal Appeals.

The Court of Criminal Appeals remanded the cause to the trial court for a determination of "the factual basis of Burgess's allegations that several jurors failed to fully respond to voir dire questions and to determine when and how Burgess discovered the basis of these claims, and if the claims could have been raised by newly appointed counsel in Burgess's motion for a new trial." Burgess v. State, [Ms. CR-05-0421, Sept. 29, 2006] 21 So.3d 745 (Ala. Crim.App.2006).

The State sent the trial court a copy of its brief on direct appeal and a letter explaining its position on remand. The trial court then ordered Burgess to file the following:

"1. Copy of [Burgess's] brief on appeal of his original conviction specifically including all issues raised on appeal;

"2. Statement(s) setting forth with specificity the factual basis of [Burgess's] allegations that several jurors failed to fully respond to voir dire questions; and

"3. Statement(s) setting forth with specificity when and how [Burgess] and/or his counsel discovered the basis of [Burgess's] allegations that several jurors failed to fully respond to voir dire questions."

In response to the trial court's order for statements "setting forth with specificity the factual basis of [Burgess's] allegations" of juror misconduct, Burgess proffered the following as facts:

"1. Juror D.C. was a victim of a crime. His car was vandalized and the top was cut off in Decatur. He once testified for his Lieutenant who was charged in a court martial.

"2. Juror R.W. was a victim of crime when her car was vandalized while she was at work.

"3. Juror L.T. was a victim of crime when someone broke into her dry cleaning store before trial. The police came and said that the thief must have had a key. She got up on a ladder and saw that the burglar got in through the top of the building. She suspected the husband of one of her customers.

"4. Juror L.T. knew a lot of people in law enforcement because as a dry cleaner she did some Decatur Police Department officers' clothes and uniforms. She has a very close friend—whom she calls her granddaughter—who was in the police department for a long time and was working in law enforcement at the time of trial.

"5. Juror L.T.'s grandson attended Austin High School before 1994.

"6. Juror T.B. had a cousin who was a military policeman in the Army and then in the sheriff's department in North Carolina. He knew Angela Casey [one of the State's witnesses] at the time of the trial because her younger brother and his son played baseball together.

"7. Juror C.H. knew district attorney Bob Burrell. She had been to his office to talk to him about a personal matter. After the trial, she received a letter from Bob Burrell, thanking her for being on the jury."

Burgess supported this proffer with affidavits from John Mays, an attorney who had represented Burgess during the trial, and three jurors. In his affidavit, Mays stated that before the trial

"the defense filed a motion to require the district attorney [Bob Burrell] to disclose past or present associations or relationships with prospective jurors, and our motion was granted. Had prospective juror C.H. disclosed during voir dire that she had a personal relationship with the district attorney and that he had assisted her in a personal matter before the trial, I would have challenged her for cause or exercised a peremptory strike to excuse her from the jury."

In response to the trial court's order for statements "setting forth with specificity when and how [Burgess] and/or his counsel discovered the basis of [Burgess's] allegations that several jurors failed to fully respond to voir dire questions," Burgess's attorney in his Rule 32 proceeding stated that the "failure-to-disclose claims were discovered by undersigned counsel in a postconviction investigation." Burgess's attorney then asserted that Burgess's "claims were not raised at trial or on direct appeal because counsel had no information that such misconduct had occurred and therefore was under no obligation to raise the claims."

The trial court did not hold an evidentiary hearing. Based upon the submissions from Burgess and the State, the trial court entered an order on remand from the Court of Criminal Appeals summarily denying Burgess's Rule 32 petition. That order states, in pertinent part:

"In response [to the Court of Criminal Appeals' remand order], [Burgess] details the assertions of juror misconduct claims in Grounds 13 and 14² of his Rule 32 petition as twice amended. [Burgess] claims the information of alleged juror misconduct was discovered as a result of [a] postconviction relief...