Ex parte Burton
Citation | 651 So.2d 659 |
Parties | Ex parte Charles L. BURTON. (Re Charles L. Burton v. State). 1930770. |
Decision Date | 16 September 1994 |
Court | Supreme Court of Alabama |
William J. Willingham, Talladega, Larry Morris, Alpine, for petitioner.
James H. Evans, Atty. Gen., Robin Blevins, Deputy Atty. Gen., for respondent.
Charles L. Burton was convicted of the capital offense of intentional murder during the course of a robbery in the first degree. Section 13A-5-40(a)(2), Ala.Code 1975. The trial court accepted the jury's recommendation and sentenced Burton to death by electrocution. The Court of Criminal Appeals affirmed. Burton v. State, 651 So.2d 641 (Ala.Crim.App.1993). This Court granted Burton's petition for the writ of certiorari in order to review the judgment of the Court of Criminal Appeals affirming Burton's conviction and sentence. Rule 39(c), A.R.App.P. Burton raises 18 issues before this Court. Sixteen of these issues are the same as those argued before the Court of Criminal Appeals.
Having thoroughly and carefully read and considered the record, together with the briefs and arguments of counsel, the applicable case law, and the opinion of the Court of Criminal Appeals, we conclude that the judgment of the Court of Criminal Appeals must be affirmed. On the authority of DeBruce v. State, 651 So.2d 599 (Ala.Crim.App.1993), affirmed, Ex parte DeBruce, 651 So.2d 624 (Ala.1994), we hold that the trial court did not err in holding a hearing on pretrial motions without the defendant being present. As to the two issues raised for the first time on appeal, we conclude that there was no error. The trial court properly considered the mitigating circumstances in the context of whether they outweighed the aggravating circumstances. Morrison v. State, 500 So.2d 36 (Ala.Crim.App.1985). The trial judge did not abuse his discretion in denying Burton a new trial. Burton's motion for a new trial alleged that one juror had failed to inform the trial court during voir dire that he worked at the city jail. The trial judge held a hearing on this motion and determined that the juror in question had answered honestly during voir dire and that this juror had testified that he could render a fair and impartial verdict. Ashley v. State, 606 So.2d 187 (Ala.Crim.App.1992).
AFFIRMED.
For the reasons expressed in Justice Almon's dissent in Ex parte DeBruce, 651 So.2d 624 (Ala.1994), I dissent; and I add the following.
The pretrial motions hearing that is the subject matter of Ex parte DeBruce and of this case was held on January 31, 1992, in the absence of both Burton and DeBruce. I submit that the trial court committed plain error when it held this hearing in their absence. The Court of Criminal Appeals held that DeBruce's absence in no way prejudiced him, because, it said, the "hearing necessitated only arguments of law." DeBruce v. State, 651 So.2d 599 (Ala.Crim.App.1993). Justice Bowen stated for the Court:
In the present case, the Court of Criminal Appeals, while acknowledging that a criminal defendant has a right to be present at "critical" pretrial proceedings, held that Burton's absence at the hearing in no way prejudiced him, because the "hearing necessitated only arguments of law." Burton v. State, 651 So.2d 641, 646 (Ala.Crim.App.1993), This holding was based upon Judge Bowen's opinion in DeBruce v. State. This Court has here affirmed Burton's conviction on the authority of DeBruce v. State and Ex parte DeBruce. I disagree.
Article I, § 6, of the Alabama Constitution of 1901 provides that "in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either." The Alabama Rules of Criminal Procedure provide that a capital defendant has a right to be present at every stage of the trial:
(Emphasis added.) Because Rule 9.1 provides that the defendant has the right to be present at the arraignment and at every stage of the trial, I disagree with the majority's conclusion in DeBruce that "the words 'the trial' ... refer to the proceedings beginning at the time the trial commences." The rule clearly states that "[the defendant has the right to be present at the arraignment and at every stage of the trial."
Historically, this Court has interpreted the defendant's right to be present as being "without any limit, and without any exception." Ex parte Bryan, 44 Ala. 402, 404-05 (1870), states:
Having so stated, this Court held in Ex parte Bryan that the trial court erred in changing the venue of a case without the presence of the accused at the hearing regarding the change.
In Neal v. State, 257 Ala. 496, 59 So.2d 797 (1952), this Court reversed a judgment in a capital case in which the judge had gone into the jury room in response to a question from the jury and there had given further jury instructions without the defendant being present. The Court stated:
"It is settled that the continuous presence of the defendant from arraignment to sentence is an essential part of the process provided for the trial of the defendant and without which the court has no jurisdiction to pronounce judgment against him."
257 Ala. at 497, 59 So.2d at 798. In Berness v. State, 263 Ala. 641, 83 So.2d 613 (1955), this Court affirmed the judgment of the Court of Appeals reversing a defendant's conviction of murder in the second degree, on the grounds that the defendant had not been present when the judge went into the street outside the courtroom during a recess and instructed certain jurors that they should not talk to any of the State's witnesses. The Court stated:
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