Osgood v. State

Decision Date29 May 2020
Docket NumberCR-13-1416
PartiesJames Osgood v. State of Alabama
CourtAlabama Court of Criminal Appeals

James Osgood
State of Alabama



OCTOBER TERM, 2019-2020
May 29, 2020

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Chilton Circuit Court

On Return to Remand

McCOOL, Judge.

James Osgood was convicted of two counts of murder made capital because it was committed during the course of a first-degree rape and during the course of a first-degree sodomy. See § 13A-5-40(a)(3), Ala. Code 1975. The jury unanimously

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recommended that Osgood be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Osgood to death. On October 21, 2016, this Court affirmed Osgood's convictions for murder made capital because it was committed during the course of a first-degree rape and during the course of a first-degree sodomy. See Osgood v. State, [Ms. CR-13-1416, October 21, 2016) ___ So. 3d. ___ (Ala. Crim. App. 2016). This Court, however, found that the circuit court's jury instructions during the penalty-phase were erroneous and that it was "probable that the [circuit] court's improper penalty-phase instructions adversely affected Osgood's Constitutional rights and, therefore, constituted plain error." ___ So. 3d at ___. Thus, this Court reversed Osgood's sentences and remanded this case for the circuit court to hold a new penalty-phase hearing pursuant to §§ 13A-5-45 and 13A-5-46, Ala. Code 1975, and for the circuit court to subsequently "determine Osgood's sentence as provided in § 13A-5-47, Ala. Code 1975." Id.

On remand, a new penalty-phase hearing was held and the jury-selection process began. However, Osgood ultimately waived the participation of a jury in the new penalty-phase

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hearing pursuant to § 13A-5-44(c), Ala. Code 1975. The circuit court subsequently imposed the sentence of death.

Standard of Review

Because Osgood was sentenced to death, this Court must review the record of the lower court proceedings for plain error. Rule 45A, Ala. R. App. P., states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."


"'"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is 'particularly egregious' and if it 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala. Crim. App. 1997), aff'd, 723 So.2d 770 (Ala. 1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521

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(1999); Johnson v. State, 620 So.2d 679, 701 (Ala. Crim. App. 1992), rev'd on other grounds, 620 So. 2d 709 (Ala. 1993), on remand, 620 So. 2d 714 (Ala. Crim. App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."'

Smith v. State, 795 So. 2d 788, 797-98 (Ala. Crim. App. 2000), quoting Hall v. State, 820 So. 2d 113, 121-22 (Ala. Crim. App. 1999). Further,

"[t]his court has recognized that '"the plain error exception to the contemporaneous objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'"' Whitehead v. State, [777 So. 2d 781], at 794 [(Ala. Crim. App. 1999)], quoting Burton v. State, 651 So. 2d 641, 645 (Ala. Crim.App. 1993), aff'd, 651 So. 2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995)."

Centobie v. State, 861 So. 2d 1111, 1118 (Ala. Crim. App. 2001).


Osgood claims that the circuit court erred in accepting his waiver of his right to a jury determination of his sentence because, he claims, his waiver was "unknowing,

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unintelligent, and involuntary." (Osgood's Supp. brief, 18.)2 Specifically, Osgood alleges that his decision to "forego [sic] jury participation was not knowing and intelligent, because the District Attorney and trial court repeatedly and consistently provided misrepresentations about the jury's role" as a mere "recommender." (Osgood's Supp. brief, 20-21.) Osgood also argues that his decision to waive his right to jury participation was involuntary because, he says, it was made after the circuit court committed numerous errors, which made having an impartial jury impossible, such as: 1) allowing the State to show the potential jurors "an extremely prejudicial crime scene photograph of the victim;" 2) not allowing a continuance to provide counsel adequate time to prepare for trial; and 3) denying defense counsel's motion for a mistrial after the district attorney commented on Osgood's previous trial and sentencing. (Osgood's Supp. brief, 22.)

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These specific claims -- that these errors affected the validity of his waiver of jury participation at his sentencing hearing -- were never presented to the trial court; therefore, we will review these claims to determine whether there is plain error. Rule 45A, Ala. R. App. P.

Osgood's new penalty-phase proceedings began on Monday, April 9, 2018. Osgood was represented by Robert Bowers, Jr., and Ali Garrett. During the individual voir dire portion of the jury-selection process for Osgood's new penalty-phase hearing, the court indicated that it had been informed that Osgood wished to forgo jury participation in his new penalty-phase hearing. The following transpired:

"THE COURT: Mr. Osgood, would you state your name on the record to confirm that you are here.

"[Osgood:] James Lee Osgood.

"THE COURT: Mr. Osgood, am I correct in what I said that you want to forego [sic] the process before a new jury as far as a sentencing hearing, meaning you want to waive that process and not have a proceedings before a new jury?

"[Osgood:] Yes, sir.

"THE COURT: Have you had an opportunity to discuss that with Mr. Bowers and/or Mrs. Garrett concerning what that means?

"[Osgood:] Yes, sir.

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"THE COURT: I want to ask you some questions. It might sound like I'm asking them several times. It's just a way for me to get on the record clearly that you know where we are going with this.

"[Osgood:] Yes, sir."

(Supp. R. on RTR, 186-88.)3 The court continued to question Osgood about his educational background, his ability to read and write, his physical health, his psychological evaluation that indicated that Osgood was competent to stand trial, and whether Osgood was on any mental-health medication. Osgood indicated to the court that he did not have any concerns about the quality of the representation of his counsel in this matter.

The court then discussed with Osgood the process of the proceedings if Osgood did not forgo jury participation, including re-presenting the testimony that had been presented

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in Osgood's first penalty-phase hearing, including information concerning any aggravating circumstances presented by the State and any mitigating circumstances to be presented by the defense. The court asked Osgood if he knew what the two possible recommendations from the jury could be, and Osgood responded: "Life without the possibility of parole and death." (Supp. R. on RTR, 192.) The court reminded Osgood that, if he chose to go through the process with a jury, the jury would then weigh aggravating factors against mitigating factors and make a decision that would "put forth a recommendation" to the court regarding the sentence. (Supp. R. on RTR, 192.) The court informed Osgood that, in addition to the information that had been presented during the penalty phase in the first trial, his defense counsel could also present any additional information regarding mitigating factors to the new jury.

The following then occurred:

"THE COURT: ... I will ask you now, knowing that you have the right to continue with this process, is it your decision alone, your independent decision to forgo or waive that process of having a jury make a recommendation to the Court?

"[Osgood:] Yes, sir.

"THE COURT: Has anyone coerced you, influenced you to do this, to waive this process?

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"[Osgood:] No, sir.

"THE COURT: Are you knowingly and voluntarily waiving a jury to make that determination or the recommendation to the Court?

"[Osgood:] Yes, sir.

"THE COURT: And you make this waiver of the jury without any coercion, threat, or promise?

"[Osgood:] Yes, sir.


"THE COURT: With you waiving your right for the jury to make a recommendation to the Court, what that tells me you want to do is you want the Judge individually, me individually, to make the sentencing determination; is that correct?

"[Osgood:] Yes, sir.

"THE COURT: Do you understand that, one, because I heard the testimony in the penalty phase and I have reviewed the record in the penalty phase that I have all your mitigating factors to consider?

"[Osgood:] Yes, sir. You already have all the facts."

(Supp. R. on RTR, 193-95.)

The circuit court informed Osgood that the court would consider the following mitigating factors based on the testimony presented at the penalty phase of his first trial: that Osgood had a poor family life prior to the incident with the victim in this case; that Osgood was sexually abused by a

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man at a bar when he was a child; that Osgood...

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