Shonelle Andre Jackson, appeals the circuit court's summary dismissal of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, challenging his capital-murder conviction and sentence of death, and his first-degree theft conviction and sentence of life imprisonment. *Page 2
On February 27, 1998, Jackson was convicted in the Montgomery Circuit Court of the intentional murder of Lefrick Moore during the course of a robbery, a capital offense, see § 13A-5-40(a)(2), Ala. Code 1975, and of theft in the first degree, a violation of § 13A-8-3, Ala. Code 1975. The jury recommended a sentence of life imprisonment without the possibility of parole for the capital offense. The trial court overrode the jury's recommendation and sentenced Jackson to death by electrocution. This Court affirmed both convictions and sentences. Jackson v. State,836 So. 2d 915 (Ala. Crim. App. 1999). The Alabama Supreme Court affirmed Jackson's conviction and death sentence and denied his application for rehearing. Ex parte Jackson,836 So. 2d 979 (Ala. 2002).
On July 30, 2003, Jackson filed a Rule 32, Ala.R.Crim.P., petition in the Montgomery Circuit Court, asserting a number of claims. On October 28, 2003, the State filed a response to the petition, challenging the claims in Jackson's petition on preclusionary, pleading, and evidentiary grounds.
On February 26, 2004, the State filed a motion to dismiss a number of Jackson's ineffective-assistance-of-counsel claims on the basis that there was no showing of prejudice in *Page 3 counsel's performance as to those grounds because this Court, in the plain-error review on direct appeal, had found no manifest injustice with regard to the corresponding underlying substantive issues. The State also filed motions requesting that the circuit court afford Jackson an opportunity to adequately plead certain enumerated claims or summarily dismiss those claims as inadequately pleaded and that the circuit court summarily dismiss certain enumerated claims pursuant to the procedural bars in Rule 32.2(a). On March 1, 2004, the circuit court issued a series of written orders: one order dismissed a number of substantive claims as procedurally barred pursuant to Rule 32.2(a); one order summarily dismissed a number of Jackson's ineffective-assistance-of-counsel allegations for failing to present a material issue of fact or law; and a third order afforded Jackson 30 days to amend certain substantive claims and ineffective-assistance-of-counsel allegations to meet the pleading requirements in Rules 32.3 and 32.6(b), or risk having those claims summarily dismissed.
On March 31, 2004, Jackson filed an amended petition and moved the court for discovery of the district attorney's file *Page 4 and institutional records; Jackson also filed a pleading objecting to the circuit court's adopting the State's proposed orders as its own. The circuit court, over the State's objection, granted Jackson's discovery requests. The State sought mandamus relief in this Court, and on March 18, 2005, this Court granted the State's mandamus petition and ordered the circuit court to vacate its ruling on Jackson's discovery motion. Jackson v. State of Alabama,910 So. 2d 797 (Ala. Crim. App. 2005). On April 21, 2006, Jackson filed a second amended petition raising several claims in support of postconviction relief, including claims of juror misconduct.1 Jackson asserted that at least one of the jurors, including Juror J.B., who were not sequestered, performed outside investigation by visiting the crime scene during the trial and then sharing these findings with other members of the jury and that Jurors W.D., D.D., J.G., and M.C. performed outside experimentation by testing bullets to discover if the type of gun Jackson was allegedly carrying at the time of the *Page 5 offense would have fired the bullet that killed the victim and passed these findings on to members of the jury.
Jackson also asserted that during voir dire, several jurors, including Jurors D.D., A.D.W., W.D., B.E., J.G., M.C., and C.C., failed to disclose that they were familiar with the Smiley Court area in Montgomery, where the crime took place and where Jackson's mother lived. He further claimed that during voir dire, several jurors failed to disclose that they knew prosecutors, the trial judge, or other individuals in law enforcement or associated with the case, alleging that Juror R. H. failed to disclose that he knew Judge William Gordon, then a circuit judge in Montgomery County and Montgomery District Attorney Ellen Brooks, who presented the case,; Juror D.D. failed to disclose that he knew Judge Charles Price, a circuit judge in Montgomery County; Juror W.D. failed to disclose that he knew Judge Charles Price and that he had close friends in law enforcement; Juror J.B. failed to disclose that his cousin is Judge Gillis; Juror A.D.W. failed to disclose that he had several friends in the Montgomery Police Department; and Juror M.J. failed to disclose that he had close friends in law enforcement. He averred that several *Page 6 jurors, including Juror R.H. and M.J., failed to disclose that they owned guns in response to a question inquiring about gun ownership. Finally, Jackson claimed that several jurors failed to reveal critical information about themselves, alleging that Juror M.C. failed to disclose that he had heard about the case before trial and that he was a retired United States postal worker who had at one time delivered mail to the Smiley Court area; that Jurors J.B., C.C., and J.G. did not disclose that they had previously sat on a jury; that Juror J.B. and R.H. failed to disclose that they had been or had family members who had been victims of crime; and that Juror M.J. failed to disclose that she had been involved in civil lawsuits.
In its motion to dismiss, the State responded that Jackson's claims of juror misconduct were precluded from review under Rule 32.2(a)(3) and (a)(5), Ala.R.Crim.P., because, it said, the claims could have been but were not raised at trial or on appeal. Additionally, the State argued that Jackson's allegations of juror misconduct "should be dismissed because Jackson does not disclose the factual basis for these allegations." (R. 75.) *Page 7
In response to the State's motion to dismiss, Jackson's counsel argued:
"[T]he claims of juror misconduct which [Jackson] now asserts rendered his trial unconstitutional could not have been raised at trial, and thus necessarily could not have been raised on direct appeal, because trial counsel could not have had any information that jurors had failed to disclose information during voir dire or that the jurors had improperly considered extraneous evidence, including information about the bullets or information about the scene of the crime, in their deliberation. The fact that this information is entirely absent from the trial record confirms this point. . . .
"Nor could these claims have been raised by appellate counsel. Following his trial, [Jackson's] trial attorneys were allowed to withdraw from his case and the circuit court appointed new counsel, unfamiliar with the case, to represent [Jackson] on appeal. As [Jackson] stated in his second amended petition, appellate counsel did not receive the transcript in this case until August 20, 1998, nearly a month after the date by which a motion for new trial could have been filed. Second Amended Petition, at 67. Without the trial record, appellate counsel had no information about the jurors who served on the panel in this case and therefore could not have even begun attempting to acquire information about this misconduct. Because appellate counsel did not have the means to acquire this information, it was impossible for [Jackson] to raise his juror misconduct claims on appeal. . .
". . . .
"The State also argues that [Jackson's] allegations of juror misconduct `should be dismissed because Jackson does not disclose the factual basis for these allegations. . . . [He] does not, for example, *Page 8 contend . . . that any of the jurors have informed him or his collateral counsels the allegations in Part II [raising claims of juror misconduct] are true.' State's Motion to Dismiss, at 75. The State cites no law in support of its assertion that [Jackson] must produce, at the pleading stage, the source of the information in support of his allegations. . . ."
(R. 826-27.)
The circuit court granted the State's motion to dismiss and summarily dismissed Jackson's petition on grounds that Jackson's juror-misconduct claims were precluded from review because they could have been, but were not, raised in a motion for a new trial or on appeal, pursuant to Rule 32.2(a) (3) and (a)(5), Ala.R.Crim.P. The circuit court also found that the claims were insufficiently pleaded pursuant to Rule 32.3, Ala.R.Crim.P.
On appeal, Jackson reasserts the same arguments in support of his juror-misconduct claims that he raised in his Rule 32 petition and in his response to the State's motion to dismiss. Jackson argues that because the alleged juror misconduct was not known to trial or appellate counsel and because appellate counsel did not have access to the record at the time his motion for a new trial was filed, the circuit *Page 9 court erroneously dismissed his juror-misconduct claims on procedural grounds.
Initially, we note:
Tanner v. United States,483 U.S. 107, 120-21(1987) (citations omitted). However, there are situations where such an investigation is required. As the Alabama Supreme Court has held:"There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time . . . after the verdict, seriously disrupt the finality of the process. Moreover, full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror misconduct."
Nichols v. Seaboard Coastline Ry. Co.,341 So. 2d 671, 674 (Ala. 1976). Rule 606(b), Ala.R.Evid., recognizes the important "distinction, under Alabama law, between `extraneous facts,' the consideration of which by a jury or jurors may be sufficient to impeach a verdict, and the `debates and discussions of the jury,' which are protected from inquiry."Sharrief v. Gerlach, 798 So. 2d 646, 652 (Ala. 2001).See also Bethea v. Springhill Mem'l Hosp.,833 So. 2d 1 (Ala. 2002) (juror visiting a crime scene is one example of extraneous information that may warrant postverdict investigation); and Ex parte Dobyne,805 So. 2d 763 (Ala. 2001) (some factors for resolving juror-misconduct allegations regarding voir dire include the remoteness of the matter inquired about, the materiality of the matter inquired about, *Page 11 the clarity of the questions asked, and the juror's inadvertence or willfulness in failing to answer truthfully)."Weighing heavily against the absolutism of a rule impeaching all extraneous matter verdicts is the well established rule that jury verdicts are presumed to be correct, and that this presumption is strengthened when the trial court, as here, refused to grant a new trial. Allred v. Dobbs, 280 Ala. 159, 190 So. 2d 712 (1966) . It is the head on collision course of these two dominant rules — the presumption of correctness of jury verdicts versus the right to a fair and impartial trial, governed exclusively by the evidence given from the witness stand and the law given by the court — that *Page 10 requires us to resolve this issue on a case by case basis.
"Only by individual consideration of all attending circumstances of each case can it be determined which one of these fundamental rules must give way in accommodation to the other. We are unwilling to say every extraneous matter verdict must be set aside absent a factual showing to the reasonable satisfaction of the trial judge that the verdict is the prejudicial result of such extraneous matters. See, for example, Clay v. City Council of Montgomery, 102 Ala. 297, 14 So. 646 (1893)."
In Ex parte Burgess, [Ms. 1070635, September 5, 2008] ___ So. 3d (Ala. 2008), the Alabama Supreme Court held that a juror-misconduct claim is cognizable in a Rule 32 petition and therefore not subject to the procedural bars of Rule 32.2, Ala.R.Crim.P., because trial counsel showed in the trial court that it could not have reasonably discovered the alleged juror misconduct in time to raise the claims in a motion for a new trial or on appeal. In so holding, the Alabama Supreme Court stated:
Burgess, ___ So. 3d at ___."It is unreasonable to hold that a defendant must uncover any and all juror misconduct in the form of inaccurate responses to voir dire examination in time to raise such claims in a motion for a new trial or on appeal. Requiring a defendant to raise such claims of juror misconduct during the interval between the voir dire examination and the filing of posttrial motions places an impracticable burden on defendants."
Additionally, in Burgess, the Supreme Court noted that there was no evidence indicating that Burgess or his counsel suspected or should have suspected any misconduct on the part of the jurors. In this regard, the Supreme Court held: *Page 12
"[I]t is unreasonable to require that a defendant, unaware of any failure to answer correctly questions posed during the voir dire examination, must contact each juror and ask whether he or she accurately and truthfully answered such questions. Jury service is sufficiently disruptive of a citizen's regular duties without this Court announcing a rule that would routinely subject jurors to potentially insulting postverdict interrogation concerning their veracity. Absent any evidence that a telephone call to some or all the jurors would have been nothing more than a fishing expedition, we cannot hold on this record that Burgess's claims are precluded."Id., ___ So. 3d at ___.
Here, the circuit court found that the claim was barred because it could have been, but was not, raised at trial or on appeal. However, the circuit court did not have the benefit of the Alabama Supreme Court's holding in Ex parte Burgess at the time it ruled on the petition. Thus, we remand this case for the circuit court to again consider Jackson's juror-misconduct allegations in light ofBurgess.
In remanding, we note that Rule 32.3, Ala.R.Crim.P., states that "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Rule 32.6(b), Ala.R.Crim.P., states that "[t]he petition must contain a clear and specific statement of the grounds upon *Page 13 which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings."
Moore v. State, 502 So. 2d 819, 820 (Ala. 1986). Here, Jackson met his burden of pleading sufficiently and with specificity facts entitling him to an opportunity to prove his juror-misconduct claims if those claims are not procedurally barred. Therefore, if the circuit court determines that Jackson's juror-misconduct claims are not procedurally barred, it should afford Jackson an opportunity to prove his claim as provided in Rule 32.9, Ala.R.Crim.P."An evidentiary hearing on a [Rule 32] petition is required only if the petition is `meritorious on its face.' Ex parte Boatwright, 471 So. 2d 1257 (Ala. 1985) . A petition is `meritorious on its face' only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true. Ex parte Boatwright, supra; Ex parte Clisby, 501 So. 2d 483 (Ala. 1986)."
Due return shall be filed with this Court within 56 days of the date of this opinion and shall include this circuit *Page 14 court's written findings and a transcript of the hearing, if one is conducted, and any other evidence relied on by the court in making its findings.
REMANDED WITH INSTRUCTIONS.
Wise, P.J., and Welch, Windom, and Kellum, JJ., concur.