Ex Parte James Allen Harrison

• Decision Date: 23 April 2010
• Docket Number: 1070223.
• Citation: 61 So.3d 986
• Parties: Ex parte James Allen HARRISON, Jr.(In re James Allen Harrison, Jr.v.State of Alabama).
• Court: Alabama Supreme Court

61 So.3d 986

Ex parte James Allen HARRISON, Jr.(In re James Allen Harrison, Jr.
v.
State of Alabama).

1070223.

Supreme Court of Alabama.

April 23, 2010.

[61 So.3d 986]

Lisa W. Borden, Susan S. Wagner, and Linda J. Peacock of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham; and James F. Barger of Frohsin & Barger, P.C., Birmingham, for petitioner.Troy King, atty. gen., and J. Clayton Crenshaw and Todd E. Hughes, asst. attys. gen., for respondent.MURDOCK, Justice.

James A. Harrison, Jr., petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Russell Circuit Court's denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief as to Harrison's claims of juror misconduct on the ground that those claims were precluded under Rule 32.2(a)(3) and (5), Ala. R.Crim. P. We issued the writ of certiorari to review only whether the unpublished-memorandum affirmance by the Court of Criminal Appeals as to that issue conflicts with this Court's decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). For the reasons discussed below, we hold that Harrison's juror-misconduct claims are not precluded, and we reverse the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

In 2000, Harrison was convicted of murder made capital because it was committed during the course of a robbery in the first degree. See

[61 So.3d 987]

Ala.Code 1975, § 13A–5–40(a)(2). The victim, Thomas Fred Day, Jr., was a handicapped individual who had suffered brain damage and permanent damage to one arm as the result of an industrial accident. The jury recommended by a vote of 11–1 that Harrison be sentenced to death; the trial judge accepted the jury's recommendation and sentenced Harrison to death. Harrison's conviction and sentence were affirmed on direct appeal. See Harrison v. State, 869 So.2d 509 (Ala.Crim.App.2002), cert. denied, 869 So.2d 529 (Ala.2003) (note from reporter of decisions), cert. denied, Harrison v. Alabama, 540 U.S. 1113, 124 S.Ct. 1042, 157 L.Ed.2d 902 (2004).

In July 2004, Harrison filed the present Rule 32, Ala. R.Crim. P., petition. After the State filed its response, Harrison filed an amended petition. The State then filed an answer to and a motion to dismiss the amended petition. In pertinent part, Harrison's petition as amended alleged that two jurors had failed to provide accurate answers to questions propounded during the voir dire examination and that their failure to do so amounted to juror misconduct that entitled Harrison to a new trial.

Harrison's Rule 32 petition alleged that juror A.T.P. failed to respond to four questions propounded by the trial court during voir dire and that she should have responded affirmatively to all four questions. Upon learning of Harrison's allegations, A.T.P. submitted an affidavit to the trial court; she confirmed some of Harrison's allegations and attempted to explain why she had failed to respond to each question.

As for the voir dire questions at issue, the trial court first asked the members of the jury venire: “Is there any member of the jury [who has been] or [has] had an immediate family member who was the victim of a robbery, and a robbery is a situation where someone uses force or threatens the immediate use of force to take property from your person?” A.T.P. failed to respond to the question. Harrison alleged, and A.T.P. confirmed in her affidavit, that she had been the victim of three separate robberies in 1994, 1997, and 1999, all of which occurred at her place of employment in Georgia.

Harrison alleged in his Rule 32 petition that

“[i]n all three robberies, the perpetrator placed a gun to [A.T.P.'s] head and demanded that she empty the cash register. The robberies scarred [A.T.P.] so severely that she needed her husband to switch work shifts from night to day for fear of being left alone at night. After the first robbery, [A.T.P.] stayed out of work for several weeks as a result of the trauma. A.T.P. ultimately testified as a witness in the trial for the first robbery,[¹ and the defendant was convicted.”

A.T.P. stated in her affidavit that the reason she did not respond to the trial court's question as to whether she had been the victim of a robbery was that she “thought [the court] was asking if we had been a victim in Alabama.” She also stated that the fact that she had been a victim of robberies “in no way affected my verdict in the guilt phase or the penalty phase of Harrison's trial.”

Second, the trial court asked the members of the jury venire:

“Has any member of the jury been indicted within the last 12 months for a felony offense or for the offense of murder with which the Defendant is charged? And a felony offense is defined

[61 So.3d 988]

as a crime involving punishment in the penitentiary for not less than one year and one day.”

A.T.P. failed to respond to the question. Harrison alleged in his Rule 32 petition that “[o]n July 20, 2000, only one month prior to Mr. Harrison's trial, a Muscogee County[, Georgia,] judge accepted A.T.P.'s guilty plea to six counts of financial transaction card fraud, punishable by up to twelve years in prison.” Copies of the court records of these charges, certified by Muscogee County, Georgia, court officials and attached as an exhibit to A.T.P.'s affidavit, show that the charges were filed on May 22, 2000.²

A.T.P. stated in her affidavit that she “did not remember that the charges had been filed within 12 months of Harrison's trial,” that she “was not aware, or had forgotten, that the charges were felony offenses,” and that she was “given first offender treatment.” A.T.P. stated that she “did not plead guilty” and that she was “placed on probation, ordered to pay a fine, and ordered to perform some community service” as a result of the charges. She also explained that she was

“told by someone at the pardons and parole office, [whose] name I cannot remember, that I was not convicted of a felony and, if asked, could say I was not convicted of a felony. Because I had settled those cases, I did not think about them while being questioned by [the court] and the attorneys for Harrison and the State.”

As she did with respect to the issue whether she had ever been a robbery victim, A.T.P. stated in her affidavit that the charges in no way affected her deliberations as a juror in Harrison's trial.

Third, the trial court asked the members of the jury venire: “[H]ave you been prosecuted or had an immediate family member that's been prosecuted in a legal matter in the past by the District Attorney's office?” A.T.P. failed to respond to the question. Harrison alleged in his Rule 32...