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09/16/94 EX PARTE CHARLES L. BURTON (RE CHARLES L.

September 16, 1994

EX PARTE CHARLES L. BURTON (RE: CHARLES L. BURTON
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. Appeal from Talladega, Circuit Court. CC-91-341, Court of Criminal Appeals. Jerry L. McLauchlin, Jr., (Talladega Circuit Court), TRIAL JUDGE.

Rehearing Denied December 9, 1994. Released for Publication March 25, 1995.

Hornsby, C. J., and Maddox, Houston, Steagall, Kennedy, and Ingram, JJ., concur. Almon and Shores, JJ., Dissent.

The opinion of the court was delivered by: Per Curiam

PER CURIAM.

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.

Hornsby, C. J., and Maddox, Houston, Steagall, Kennedy, and Ingram, JJ., concur.

Almon and Shores, JJ., Dissent

ALMON, JUSTICE (dissenting).

I Dissent for the reasons stated in my Dissent in Ex parte DeBruce, 651 So. 2d 624 (Ala. 1994).

SHORES, JUSTICE (dissenting).

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 Harris v. State, 632 So.2d 503, 512 (Ala. Cr. App. 1992), this Court held that in a capital case, 'if the appellant's presence, in the present case, would have been useless to her defense and if the [pretrial] hearing was not considered to be a "critical stage" of her trial, then ...


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