Ex parte Musgrove

• Decision Date: 17 December 1993
• Citation: 638 So.2d 1360
• Parties: Ex parte Donnis George MUSGROVE. (Re David Walter ROGERS and Donnis George Musgrove v. STATE). Ex parte David Walter ROGERS. (Re David Walter ROGERS and Donnis George Musgrove v. STATE). 1921210, 1921211.
• Court: Alabama Supreme Court

Page 1360

638 So.2d 1360

Ex parte Donnis George MUSGROVE.

(Re David Walter ROGERS and Donnis George Musgrove v. STATE).

Ex parte David Walter ROGERS.

(Re David Walter ROGERS and Donnis George Musgrove v. STATE).

1921210, 1921211.

Supreme Court of Alabama.

Dec. 17, 1993.

Rehearing Denied March 4, 1994.

Dwight L. Driskill, Birmingham, for Donnis George Musgrove.

Tommy Nail of McAbee, Nail & Ragsdale, Birmingham, for David Walter Rogers.

James H. Evans, Atty. Gen., and Melissa G. Math and Sandra J. Stewart, Deputy Attys. Gen., for State.

HORNSBY, Chief Justice.

In a consolidated trial, David Walter Rogers and Donnis George Musgrove were convicted of capital murder and both were sentenced to death. The Court of Criminal Appeals reversed their convictions, based on what that court ruled was the improper admission of evidence of their flight from police nearly two months after the murder. Rogers and Musgrove v. State, 630 So.2d 78 (Ala.Crim.App.1991). On certiorari review, this Court reversed, ruling that there had been no error in the admission of the flight evidence. Rogers and Musgrove v. State, 630 So.2d 88 (Ala.1992). On remand from this Court the Court of Criminal Appeals addressed the remaining issues raised on appeal and then affirmed the convictions. Rogers and Musgrove v. State, 638 So.2d 1347 (Ala.Crim.App.1992).

This Court has granted each defendant's petition for certiorari review. Rule 39(c), A.R.App.P. In their petitions, Musgrove raised 16 issues for review and Rogers raised 15. All but four of the issues were presented to and treated in great detail by the Court of Criminal Appeals in its two prior opinions in this case. ¹ We address only the newly raised issues and one issue previously considered by the Court of Criminal Appeals--whether during closing arguments at the guilt phase of the trial the district attorney improperly commented on the defendants' failure to testify and, thus, violated their constitutional right not to testify.

I. Facts

In the early morning of September 27, 1986, two men armed with handguns broke into a small house in Robinwood, in Jefferson County, Alabama. The house was occupied by Coy Eugene Barron, his wife Libby, their baby, and an overnight guest, Jamie Crawford, who was asleep on a mattress in the living room. The men kicked in the front door of the darkened house and proceeded directly to the single bedroom where Coy and Libby and their baby were sleeping.

Coy awoke and attempted to hold the bedroom door closed while his wife stood behind him, holding the baby. The men forced the door open and when Coy picked up a bottle as if to throw it at them, they each fired a shot. One of the shots missed, but the other fatally injured Coy. After the shots, the men quickly fled.

On October 1, 1986, Libby Barron was shown a five-photograph "lineup" of potential suspects, which included photos of both Musgrove and Rogers. She identified the two as her husband's killers, but wanted to see a live lineup. Musgrove and Rogers were arrested on November 22, 1986, following a lengthy, high-speed automobile chase in the area of Decatur, Alabama, which ensued when they fled from a police officer who was attempting to pull them over for driving a vehicle that did not have a license plate other than a dealer's tag. At the time of their arrest, both defendants were escapees from prison work release programs and Rogers was under a sentence of life imprisonment. On December 5, 1986, Libby Barron identified both Musgrove and Rogers in separate live lineups.

In February 1987 the defendants were indicted for capital murder. Musgrove was charged with intentionally causing the death of Coy Barron by shooting him with a pistol during the course of a burglary, Ala.Code 1975, § 13A-5-40(a)(4). Rogers's indictment contained the same count as Musgrove's and contained a second count alleging that he committed the murder while under a sentence of life imprisonment, Ala.Code 1975, § 13A-5-40(a)(6).

At trial, in February 1988, the defendants presented alibi evidence that they had been in Bradenton, Florida, staying with Musgrove's aunt from August 28 until October 6, 1986, and that they had never left her house for more than a few hours at a time. The State rebutted this testimony by presenting evidence that a wallet and identification that were in Rogers's possession at the time of his and Musgrove's arrest had last been seen by the wallet's owner in the glove compartment of his automobile, which had been parked in front of his apartment in suburban Atlanta, Georgia, on September 28, 1986, the day following the murder.

The jury found both defendants guilty of capital murder, and at the sentencing phase of the trial the jury returned a verdict recommending the death penalty. On May 20, 1988, the trial judge sentenced the defendants to death.

II. Separation of the Jury

Musgrove and Rogers contend that they are due a new trial because they say the jury "separated" during a Sunday recess of their trial and the separation was without their consent. Section 12-16-9(a), Ala.Code 1975, provides:

"If the accused and his counsel and also the prosecuting attorney, in any prosecution for a capital felony consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not. A separation so permitted shall not create a presumption of prejudice to that accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury."

Where a separation occurs in violation of such a statute, there is a presumption of prejudice to the accused. Reeves v. State, 432 So.2d 543, 547-48 (Ala.Crim.App.1983). Musgrove and Rogers contend not only that a separation occurred, but that the separation was in violation of the statute and that the State has failed to rebut the presumption of prejudice. In response, the State argues that the record reveals only that the trial judge allowed family visitation during the Sunday recess if the jurors chose to have family visitation and that the defendants have not shown that there was an actual "separation" of the jury. The State further contends that unless the defendants can first show that the jury improperly separated, there is no presumption of prejudice for the State to overcome. We agree.

Neither Musgrove nor Rogers objected at trial to the Sunday recess. Thus, this issue is being raised for the first time on this certiorari review. Accordingly, the issue was not properly preserved for appeal and is reviewable only under the plain error standard. Rule 39(k), A.R.App.P.; Ex parte McWilliams, [Ms. 1911242, January 29, 1993] --- So.2d ---- (Ala.1993). We further note that before trial defense counsel objected to the court's decision to sequester the jury and suggested that a Sunday recess be taken, stating that the case had not received much publicity and was not expected to receive more during trial. For the defendants now to contend that the Sunday recess requested by defense counsel caused a "separation" of the jury that entitles them to a new trial nearly rises to the level of invited error.

Although the defendants vigorously argue that the trial court's allowing visitation rights for the jurors' family members during the Sunday recess constituted an improper "separation" of the jury, our review of this allegation of error is limited to what is found in the record. See Bush v. State, 333 So.2d 186, 188 (Ala.1976). The record contains no indication that jurors actually received visitation from family members or that, if they did, any visitation amounted to a separation of the jury. The jurors were properly instructed by the trial judge not to discuss the case with anyone. Absent a showing in the record, it is not this Court's province to speculate as to what actually occurred during the Sunday recess. Accordingly, we find no plain error.

III. Jury Instructions on Felony Murder and Accomplice Liability

Both Musgrove and Rogers contend that the jury was not properly charged that it could return a felony murder conviction based on accomplice liability against either defendant if it found that the other was guilty of felony murder as the actual killer. They contend that the accomplice liability charge did not include an instruction that a defendant could be found guilty of felony murder by accomplice liability because the charge instructed the jury that accomplice liability required an intentional killing. Thus, they argue that the charge given precluded the jury from applying accomplice liability while considering the lesser included offense of felony murder, which does not require an intentional killing. In response, the State argues that proper instructions were given on both felony murder and accomplice liability.

Neither Musgrove nor Rogers objected to the jury charges at issue during trial and they have not previously raised the issue on appellate review. Accordingly, the issue is reviewable only under the plain error standard. Rule 39(k), A.R.App.P. We further note that during a conference with the trial judge before the jury charges were given, counsel for both Musgrove and Rogers objected to the court's giving of an instruction on felony murder. Defense counsel objected to jury charges on any lesser included offenses. For the defendants now to argue that they should be granted a new trial based on the contention that an offense they did not want the jury to consider was charged in such a way as to preclude the jury from finding them guilty on that charge, again, comes close to invited error.

We have examined the record and conclude that the jury was fully and adequately charged on both felony murder and accomplice liability. The record shows that the felony murder charge was immediately followed by the accomplice liability charge. Although the accomplice liability charge did instruct...