Ex parte Burgess

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Ex parte Burgess, 811 So.2d 617 (Ala. 2000)
• Decision Date: 21 July 2000
• Parties: Ex parte Roy BURGESS, Jr. (In re Roy Burgess, Jr. v. State).

811 So.2d 617

Ex parte Roy BURGESS, Jr.

(In re Roy Burgess, Jr. v. State).

1980810.

Supreme Court of Alabama.

July 21, 2000.

Bryan A. Stevenson and J. Drew Colfax, Equal Justice Initiative of Alabama, Montgomery, for petitioner.

Bill Pryor, atty. gen.; and Michael B. Billingsley and Kathryn D. Anderson, asst. attys. gen., for respondent. On Application for Rehearing

PER CURIAM.

The opinion of January 28, 2000, is withdrawn and the following is substituted therefor.

Roy Burgess, Jr., was convicted of capital murder for the death of Kevin Gardner, under § 13A-5-40(a)(2), Ala.Code 1975— murder made capital because it was committed during the course of a robbery in the first degree. Both Burgess and his victim were age 16 at the time the murder was committed. The jury recommended by a vote of 10-2 that Burgess be sentenced to life imprisonment without parole. The trial court, overriding the jury's recommendation, sentenced Burgess to death. The Court of Criminal Appeals affirmed Burgess's conviction and sentence. Burgess v. State, 811 So.2d 557 (Ala.Crim.App. 1998). This Court granted certiorari review pursuant to Rule 39(c), Ala. R.App. P.

I.

The Court of Criminal Appeals set forth the following detailed statement of the facts of the case.

"The state's evidence tended to show that on the afternoon of August 12, 1993, Burgess visited his friends Demetrius Stevenson, Richie Jones, Kevin Matthews, and Will Hatton at their apartment on Graymont Lane in Decatur. Burgess, who was 16 years old at the time, had a .25 caliber pistol in his possession; he complained to his friends that he needed money and proceeded to tell them about a plan to make money by robbing someone or by stealing a car or a car stereo. Testimony indicated that Burgess and the others sat around the apartment for some time discussing this plan. Sometime between 6:00 and 7:00 p.m. that evening, Burgess, Stevenson, and Jones got a ride to a local shopping mall from Larry Hays, who lived across the street from Stevenson and Jones. At the mall, Burgess remained in the parking lot while the others went inside. Stevenson and Jones testified that when they came out of the mall at around 8:30 p.m., they saw Burgess getting into a white truck in the parking lot. Stevenson and Jones then walked back to their apartment without Burgess. According to Stevenson and Jones, Burgess returned to their apartment sometime between 9:00 and 9:30 p.m. and told them that the people in the truck had given him a dollar but they `didn't have anything.' Burgess remained at the apartment for another 15 minutes before leaving by himself.

"Stevenson and Jones testified that Burgess returned to their apartment again at approximately 10:30 p.m. and asked them if they wanted to go to a party at Cedar Lake in Decatur. They testified that after agreeing to go to the party, they walked outside with Burgess, whereupon Burgess introduced them to 16-year-old Kevin Gardner, the victim, who was sitting in his car in the apartment parking lot. Stevenson and Jones testified that Burgess told them that Gardner had agreed to drive them to the party. The three men got into Gardner's car, with Burgess sitting in the front passenger seat and Stevenson and Jones sitting in the backseat. Gardner then proceeded to drive on Ray Avenue in Decatur, in the direction of Cedar Lake. Stevenson and Jones testified that Burgess and Gardner were engaged in some kind of conversation in the front seat, but that they could not hear what was being said because the car stereo was turned up so loud. Gardner continued to drive on Ray Avenue to a remote area where the road was no longer paved and there were no houses nearby. Stevenson and Jones testified that at that point, Gardner said that he did not want to drive any farther and told his passengers that they would have to get out and walk. According to Stevenson and Jones, Burgess then opened his door and quickly turned around and shot Gardner in the head with his pistol. Stevenson and Jones testified that Burgess then pulled Gardner's body out of the car and dragged it to some bushes by the side of the road. Burgess then got behind the wheel of Gardner's car, and drove Stevenson and Jones back to the apartment on Graymont Lane.

"Kevin Matthews and Will Hatton were at the apartment when the three men arrived in Gardner's car. Testimony indicated that the group decided to drive Gardner's car to Birmingham to sell it to a `chop shop.' Before leaving for Birmingham, Stevenson went across the street to Larry Hays's apartment and told Hays what had happened. Stevenson then asked Hays to follow them to Birmingham. Stevenson, Jones, and Hatton rode to Birmingham with Hays in Hays's car, while Burgess and Matthews travelled in Gardner's car, with Burgess driving. After the group arrived in Birmingham, they were unable to find a `chop shop' where they could sell Gardner's car. They decided to leave Gardner's car in the parking lot of a Birmingham nightclub. Before abandoning Gardner's car, they took several items from the car, including the stereo equipment, several compact discs, and a portable compact disc player. They then returned to Decatur in Hays's car.

"Stevenson and Jones testified that the following day, August 13, 1993, they sold the stereo equipment that they had taken from Gardner's car. Later that same day, at approximately 5:30 p.m., Stevenson, Jones, and Matthews went to Stevenson's grandmother's house in the Cedar Lake area, close to where Gardner's body had been left. At that time, the three men decided to call the Decatur police. Jones telephoned the police, telling them that he and two of his friends had found a dead body while picking blackberries. The police officer who responded to the call met Stevenson, Jones, and Matthews at Stevenson's grandmother's house. The men then took the officer to Gardner's body. At that time, a homicide investigation was initiated, and several more officers were called to the scene. After questioning Stevenson, Jones, and Matthews at the scene, the police took down their names and allowed them to leave.

"The following day, August 14, 1993, law enforcement authorities located Gardner's car in Birmingham. With no other leads in their homicide investigation, Decatur police focused their suspicion on Stevenson, Jones, and Matthews. The three men were brought to the police station for questioning. The questioning was conducted individually. After initially denying any knowledge of Gardner's murder, all three men eventually told the police that Burgess had killed Gardner. After consulting with the district attorney, the police told Stevenson, Jones, and Matthews that if the evidence showed that they were telling the truth and that they had not killed Gardner, they would not be charged with Gardner's murder.

"After obtaining a [warrant] to arrest Burgess for Gardner's murder, Decatur police arrested Burgess at his parents' residence on August 16, 1993. Burgess was transported to the police station, where he gave police a statement. In his statement, Burgess maintained that on the evening of the shooting, he had seen Gardner coming out of a convenience store near the mall and had asked Gardner, whom he said he knew from school, for a ride to his friends' apartment on Graymont Lane. Burgess stated that Gardner agreed to give him a ride and then drove him to the apartment. Burgess stated that when they arrived at the apartment, he tried to warn Gardner that Stevenson and Jones intended to rob him, but Gardner was not concerned. Burgess stated that Stevenson and Jones got into Gardner's car with him and that Gardner then proceeded to the remote area on Ray Avenue, where, Burgess stated, Stevenson and Jones intended to rob Gardner. Burgess stated that during the robbery, he pointed his gun at Gardner and that the gun accidentally discharged, shooting Gardner in the head.

"In compliance with their immunity agreements, the state did not prosecute Stevenson or Jones for any participation in the crime. Although Stevenson and Jones admitted at Burgess's trial that earlier on the day of the shooting they had participated in the discussion with Burgess concerning Burgess's plan to steal a car or a car stereo, both men testified that they had no prior knowledge of Burgess's intention to rob or to kill Gardner. Both men testified that when they left their apartment with Burgess and Gardner in Gardner's car, they believed Gardner was taking them to a party.

"The state also presented testimony from Roderick Reynolds, who was being held in the same juvenile detention facility as Burgess following Burgess's arrest. Reynolds testified that while he was in the juvenile detention facility with Burgess, Burgess told him that he had killed a `white boy' and had left the boy's body in some bushes.

"Burgess's theory of defense at trial was that his older companions—Stevenson and Jones—conceived and organized the plan to steal a car or a car stereo to make some money and that Stevenson and Jones were the main participants in the robbery and murder of Gardner. Stevenson was 18 at the time of the offense, and Jones was 19. Contrary to his statement to police, Burgess testified at trial that he did not shoot Gardner and maintained instead that Stevenson had shot Gardner. Although he acknowledged that he had had a gun on the night of the murder, Burgess testified that it did not work. He maintained that Stevenson also had a gun. Burgess testified that after his arrest, he told the police that he had killed Gardner only because he thought the police would help him and that he would not be tried as an adult. Burgess further testified that on the day of the murder, a man came to the apartment on Graymont Lane to see Stevenson and to ask Stevenson to repay him money that he owed him. According to Burgess, Stevenson said that he would have to steal a car to get the money to repay the man. Burgess testified that he had asked Gardner for a ride to

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