Burgess v. State

723 So.2d 742

Alonzo Lydell BURGESS v. STATE.

CR-93-1147.

Court of Criminal Appeals of Alabama.

August 22, 1997.

Rehearing Denied October 17, 1997.

John R. Benn, Sheffield, for appellant.

Bill Pryor, atty. gen., and Tracy Daniel and Michael Billingsley, deputy attys. gen., for appellee.

COBB, Judge.

Alonzo Lydell Burgess was convicted by a Jefferson County jury of the attempted murder of LaRico Devon Long, § 13A-4-2, Ala. Code 1975, and of the capital murder of Shelia Nnodimele, Alexis Nnodimele, and Latoria Long by one act or pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Ala.Code 1975. The jury recommended, by an 8-4 vote, that Burgess receive a sentence of life imprisonment without parole. The trial court sentenced Burgess to death. Burgess appeals from the capital murder conviction and death sentence. We affirm.

The trial court's sentencing order summarized the evidence presented at the guilt phase as follows:

"The Court finds from the evidence introduced at trial that the defendant, Alonzo Lydell Burgess, was living with the deceased, Sheila Nnodimele, and her three children, deceased, Latoria Long, age 14 years, deceased, Alexis Nnodimele, age 8 years, and LaRico Long, age 2 1/2 years on or about January 28, 1993, and January 29, 1993, at her home on Brotherton Street in Cherokee, Alabama. The Court finds that defendant had been living with Shelia Nnodimele for some time and that they had had a stormy relationship with the defendant physically abusing the deceased, Shelia Nnodimele, and with the defendant having a bad relationship with the oldest daughter, Latoria Long, deceased. The Court finds from the evidence that the deceased, Shelia Nnodimele, and her three children had had to move out of their own home on several occasions during Shelia Nnodimele's relationship with the defendant due to his abuse. The Court further finds from the evidence that the defendant, Alonzo Lydell Burgess, was dependent on deceased, Shelia Nnodimele, for furnishing him money (at the time, she worked, and he did not), for a roof over his head, his food and for transportation. The Court further finds that the defendant, Alonzo Lydell Burgess, had a crack cocaine habit at the time in question and that he would frequent the place of employment of deceased, Shelia Nnodimele, especially on paydays (Thursdays) in order to get her check so he could support his habit.

"The Court further finds that the two older children, Latoria Long and Alexis Nnodimele, were good students and had not missed any full days of school in the 1992-1993 school year prior to January 29, 1993. The Court finds that the last time these two girls were seen alive was in the afternoon at the end of school on January 28, 1993. The Court further finds that on the evening of January 28, 1993, the defendant was seen by various witnesses at Shelia Nnodimele's place of employment with another woman at the beginning of Ms. Nnodimele's shift, and that he did not get her paycheck even though it was payday. The Court finds that he called her at least twice and the first time he called, Alvin Powers, her co-worker, who answered the telephone, did not tell Shelia Nnodimele who was calling, but he knew it was the defendant. She answered the telephone. The second time defendant called, Jessie Freeman, her co-worker answered the telephone and he told Shelia Nnodimele who was calling and she refused to answer to telephone.

"The Court finds from the evidence that the defendant killed the two girls between the time they were last seen at school and the time they were found on the morning of January 30, 1993. More specifically, the Court finds from the evidence that he beat the two girls to death with a bumper jack assembly post and strangled Latoria Long with a ligature on the night of January 28, 1993, or the early morning hours of January 29, 1993, prior to 7:15 a.m. when Shelia Nnodimele, deceased, returned to her home from work.

"The Court further finds that Shelia Nnodimele was last seen alive the morning of January 29, 1993. The Court further finds that the defendant killed Shelia Nnodimele on the morning of January 29, 1993, by beating her on or about the head with a bumper jack assembly post and by strangling her with a ligature and by suffocating her when she returned home from work. When she was found dead, she was wearing the clothes she had been wearing when she was last seen at work by one of the co-workers. Dr. Kenneth Warner testified that the cause of death of Shelia Nnodimele was trauma to her head, strangulation or suffocation or a combination of the three and that the manner of death was homicide; that he testified that the cause of death of Latoria Long was cranial cerebral trauma (trauma to her head) and strangulation by ligature, and that the manner of her death was homicide, and finally that he testified that the cause of Alexis Nnodimele's death was cranial cerebral trauma (trauma to her head) and that the manner of her death was homicide. He further testified that the presence of cerebral edema in Alexis Nnodimele indicated that she died slowly, because a person has to be alive in order for edema to appear. He testified that all three deceased suffered extensive fractures to their skulls and neck[s]. With respect to the neck injuries found by Dr. Warner on Shelia Nnodimele and Latoria Long, he testified they were identical. He further testified that the victims received the blow to the top of their heads which was of such magnitude that it caused a fracture to the base of their skulls. Likewise did Dr. Warner find an extensive fracture to the base of the skull on Alexis Nnodimele, and he testified that her injuries were consistent with those of her mother and sister. The Court further finds from the evidence that defendant on January 29, 1993, was seen by various witnesses, either wanting to borrow money or pawning items belonging to the deceased victims, and that he appeared nervous, fidgety, and big-eyed.

"The Court further finds that after defendant killed the three victims, he attempted to commit suicide on January 30, 1993, and left two notes indicating the reasons for the killings. However, the Court also finds from the evidence that defendant's misuse of the deceased, Shelia Nnodimele's money, house and vehicle was in the process of being terminated by her immediately prior to her death."

We observe at the outset that Burgess did not object at trial to many of the instances he now claims to be reversible error. Although this failure to object does not preclude appellate review under the plain error standard, it weighs against any claims of prejudice. Taylor v. State, 666 So.2d 36, 49 (Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala., 1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996). "The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant." Ex parte Trawick, 698 So.2d 162 (Ala.1997).

GUILT PHASE

I

Burgess contends that the indictment against him was invalid because the trial court failed to follow circuit court rules governing the selection of grand jury forepersons. He argues also that the trial and district attorney should have been disqualified from participating in the hearing on this issue. Burgess is not entitled to relief on his claims.

Before trial, Burgess filed a motion to dismiss the indictment against him on grounds that there had been a systematic underrepresentation of blacks, women, and young adults in the selection of grand jury forepersons in Colbert County.¹ He also moved that the trial judge disqualify herself and the district attorney from hearing any and all matters he raised regarding the selection of the grand jury foreperson. The trial court entered orders denying the motions to disqualify, and set the discriminatory selection claim for a hearing.

At the hearing, the Colbert County clerk testified that before Burgess was indicted, a new procedure for selecting grand jury forepersons had been implemented, and that under the new procedure a foreperson was randomly selected from the group of grand jurors. The parties then stipulated and the trial judge stated for the record that the 18 grand jurors who heard the appellant's case had been randomly selected. Of the 18 grand jurors, only one was black; the trial judge acknowledged that she selected that individual to be the grand jury foreperson as, the judge stated, "affirmative action to prevent any defects there may have been in the selection of grand jury forepersons during the prior years." Defense counsel then stated that because of the new selection procedure, he would not present historical data, but rather his motion to dismiss the indictment would be limited to whether "affirmative action" was a permissible consideration in the selection of grand jury forepersons. The trial court ultimately denied the motion to dismiss the indictment.

On appeal, Burgess argues that, while the trial court's desire to provide minority representation on the grand jury was admirable, the court's actions defeated the purpose behind the recent change to a random selection of forepersons and improperly deviated from the "approved" procedure. Burgess also argues that the court's "affirmative action plan" discriminated against whites and women. The State contends that Burgess failed to establish a prima facie case of discrimination in the selection of grand jury forepersons, and that the error, if any, was harmless because the court's selection of the grand jury foreperson did not violate Burgess's right to a fair trial.

To prove a prima facie case of discrimination in the selection of a grand jury foreperson, a petitioner must show: 1) that the group alleged to be discriminated against is a distinct group, singled out for different treatment; 2) the degree of underrepresentation of the group over a significant period of...