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01/13/95 VIRGIL LEE BROWNLEE v. STATE

January 13, 1995

VIRGIL LEE BROWNLEE
v.
STATE



Appeal from Jefferson Circuit Court. (CC-86-2857.10). James Hard, TRIAL JUDGE.

Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. Certiorari Denied July 21, 1995. Released For Publication January 9, 1996.

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

The appellant, Virgil Lee Brownlee, was convicted of capital murder and was sentenced to death. This conviction and sentence were affirmed on direct appeal. Brownlee v. State, 545 So. 2d 151 (Ala. Crim. App. 1988), aff'd, 545 So. 2d 166 (Ala. 1989), cert. denied, 493 U.S. 874, 110 S. Ct. 208, 107 L. Ed. 2d 161 (1989), reh. denied, 493 U.S. 986, 110 S. Ct. 527, 107 L. Ed. 2d 527 (1989). The appellant filed a petition under the Rule 20, Ala. R. Crim. P. Temp. *fn1 . The circuit Judge who presided over the appellant's trial also presided over the evidentiary hearings on this petition, which were held on December 18, 1990, April 9, 1991, and August 20, 1991. On April 2, 1992, the trial Judge denied the appellant's petition in a written order. This appeal followed.

The appellant, in his brief on appeal, claims that this Court must search this record for plain error, pursuant to Rule 45A, Ala. R. App. P. However, "'the plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence.' Thompson v. State, 615 So. 2d 129 (Ala. Cr. App. 1992)." Cade v. State, 629 So. 2d 38, 41 (Ala. Crim. App. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1579, 128 L. Ed. 2d 221 (1994).

In addition, "the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed." State v. Tarver, 629 So. 2d 14, 19 (Ala. Crim. App. 1993).

The appellant tries to preserve issues not presented in his brief on appeal by referring to these issues, contained in his petition, in footnote 3 of the brief. "'Allegations ... not expressly argued on ... appeal ... are deemed by us to be abandoned.' United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.), cert. denied, 454 U.S. 1037, 102 S. Ct. 580, 70 L. Ed. 2d 483 (1981)." Burks v. State, 600 So. 2d 374, 380 (Ala. Crim. App. 1991). We will not review issues not listed and argued in brief. Burks.

I

The appellant claims that the trial court erred in not granting this petition and ordering a new trial because, he says, the testimony at trial of the state's chief witness, Willie Goodgame, was allegedly perjured. This claim is based on Goodgame's recantation of his trial testimony. The appellant relies on Ex parte Frazier, 562 So. 2d 560 (Ala. 1989) to support his argument that his conviction and sentence should be reversed and a new trial granted.

A brief overview of the facts of this case is helpful. On May 19, 1986, three individuals entered Jodie's Lounge in Birmingham and robbed the bar and its patrons and shot and killed the owner, Lathen Aaron Dodd. Willie Goodgame and Robert Harris were positively identified by eyewitnesses as participants, but none of the victims could identify the appellant either as a robber or as the triggerman. Goodgame was allowed to plead guilty to felony murder and he was sentenced to four consecutive life sentences, in exchange for his testimony against Robert Harris and the appellant. Goodgame's testimony against the appellant was summarized as follows in Brownlee v. State, 545 So. 2d 151, 154-55 (Ala. Crim. App. 1988):

"Goodgame testified that the defendant formulated the robbery. According to him, Brownlee stated a few hours before the robbery, 'I know where there is a lick,' meaning where they could get some money. The defendant, Goodgame, and Harris discussed how to pull the robbery, and they armed themselves with a .357 Magnum, a .38 pistol with a sawed-off barrel, and a regular .38 pistol, respectively. Goodgame stated that they drove to Jodie's Lounge in 'Sonny' Warren's car and that Warren stayed in the car while the others went in and robbed the bar. The statement that Warren was involved was disputed by Warren.

"According to Goodgame, when he, Harris and Brownlee arrived at the bar, Goodgame was posted at the entrance and stayed there throughout the robbery. He maintained that he never fired any shots. Goodgame further testified that he did not see whether it was Harris or Brownlee that shot Dodd, but that subsequent to the robbery, when the spoils were being divided between them, Brownlee stated to Harris: 'He had gone for his pistol .... I had to kill the

M F because he went for his pistol.' Moreover, Goodgame said that the next day [the] defendant stated: 'If I wouldn't have shot him, he would have shot me.'

"Part of Goodgame's testimony was corroborated by that of 'Sonny' Warren and Reavor Jones. Warren and Jones testified that the defendant, Harris, and Goodgame locked themselves up in the bedroom of Reavor Jones's apartment for an unspecified period of time. When they came out they were all armed with guns. Defendant asked Warren if he could borrow his car. Warren was initially unwilling to let Brownlee borrow his car, but eventually agreed. However, Warren stated that he had no knowledge of the planned robbery. Warren and Jones said that Brownlee, Harris, and Goodgame then left Reavor Jones's apartment and were gone for approximately two hours. Warren and Ms. Jones, according to their own testimony, remained at Ms. Jones' apartment. When they returned they again went back to the bedroom and closed the door behind them. Some time later, Warren entered the bedroom and saw a number of wallets and jewelry spread out on the bed. Later, the defendant, Goodgame, and Harris emerged from the bedroom to 'shoot' or 'snort' some cocaine, smoke some marijuana, and take some 'T's' and 'Blues.' At some point, Harris almost overdosed and the group talked about taking him to a hospital.

"The next day Goodgame and the defendant attempted to sell their weapons and the gun stolen from one of the patrons of Jodie's Lounge to Booker T. Harris. However, Harris was willing to buy only two of the weapons, leaving Goodgame and the defendant with the .357 Magnum. The defendant and Goodgame also disposed of the emptied wallets and identification papers taken in the robbery by going behind Ms. Jones' apartment and throwing them into Village Creek. Investigators from the Birmingham Police Department later recovered some of these identification papers from the banks of Village Creek directly behind Ms. Jones' apartment. The investigators also recovered the weapons sold to Booker T. Harris by the robbers. This concluded the State's case. The defendant offered no testimony."

Brownlee v. State, 545 So. 2d at 154-55.

The standard applied in death penalty cases where a defendant seeks a new trial on the ground of perjured testimony is set out in Ex parte Frazier, 562 So. 2d 560, 570 (Ala. 1989):

"In order to grant a motion for a new trial alleging perjured testimony, the trial court must be reasonably well satisfied 1) that testimony given by a witness at trial was false; 2) that there is a significant chance that had the jury heard the truth, it would have reached a different result; and 3) that the movant is not relying on evidence of which he was aware at trial and which he consciously decided not to use to challenge the testimony of the perjured witness."

See also Hays v. State, 599 So. 2d 1230 (Ala. Crim. App. 1992); McMillian v. State, 616 So. 2d 933 (Ala. Crim. App. 1993).

"With regard to the standard, 'a presumption of correctness will continue to be indulged in favor of the trial court's factual findings, and the trial court's ruling on the motion will be upheld on appeal unless it is clearly erroneous."

616 So. 2d at 941.

The nature of Willie Goodgame's recantation is best illustrated by the following testimony from a deposition taken on May 28, 1991:

"Q [State]: In any event, you said that you were coerced to testify falsely by the implication of threat. If you would, tell me what these implied threats were.

"A [Goodgame]: Well, I just felt like that since I have learned more concerning the law, since I have been in prison, and I just felt like it could have been, you know, what's really happening. You know -- they interrogated me, just do it right instead of saying what Brownlee, you know, had said, what Brownlee going to do and different things like that. So, those are the kinds of threats that I said I feel.

"Q: And this was made by Mr. Russell [district attorney]? Did Mr. Russell tell you this?

"A: Well, you know, Mr. Russell and my attorney, they just was telling me, you know, what Brownlee going to do, you know, and was telling me about he don't have no -- you know, he through with life, he, you know, different things like that. Getting out of prison and so on and so on, things like that.

"Q: Which one told you this, Mr. Russell or your attorney

--

"A: ...


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