MONTGOMERY, Ala. — Charles “Sonny” Burton didn’t kill anyone. The state of Alabama could execute him anyway.
Burton, 75, is facing execution for his role as an accomplice in a 1991 robbery at an auto parts store where customer Doug Battle was killed. No one disputes that another man, Derrick DeBruce, shot and killed Battle. Burton, one of six men involved in the robbery, was outside the store at the time of the shooting, according to testimony.
DeBruce and Burton were both sentenced to death. But DeBruce was later resentenced to life imprisonment, leaving Burton — who neither fired the gun nor ordered anyone to be killed -- as the only person facing execution.
Matt Schulz, Burton’s attorney, said the case “represents an extreme outlier” among death penalty cases.
The Alabama Supreme Court in January authorized Gov. Kay Ivey to set an execution date for Burton using nitrogen gas. The victim’s daughter and multiple jurors from his 1992 trial are now urging the governor to grant clemency, arguing the case raises fundamental questions of fairness.
“We hope and pray that Governor Ivey recognizes that this case slipped through the cracks. It would be wrong to execute a man who did not even see the shooting take place, after the state agreed to resentence the shooter to life without parole, and this is simply not the kind of case most people think of when they envision the death penalty being carried out,” Schulz said.
The murder at the AutoZone
The shooting occurred Aug. 16, 1991, during a robbery at an AutoZone in Talladega.
Before they went inside, Burton, who was 40, said if anyone caused trouble in the store that he would “take care of it,” according to testimony.
DeBruce yelled for everyone to get down. Burton, also armed with a gun, forced the manager to the back to open the safe.
As the robbery ended, Battle, a 34-year-old Army veteran and father of four, entered the store. He threw his wallet down, got onto the floor and exchanged words with DeBruce. LaJuan McCants, who was 16 at the time, testified that Burton and others had left the store when DeBruce shot Battle in the back.
Afterward, Burton asked DeBruce in the getaway car why he had shot the man, McCants testified.
During closing arguments, a prosecutor argued Burton was “just as guilty as Derrick DeBruce, because he’s there to aid and assist him.” Prosecutors pointed to the statement about handling trouble as evidence that Burton was the robbery leader.
But Burton’s attorneys said there is only evidence that Burton intended to participate in a robbery, not to harm anyone.
A victim’s plea and a juror’s regret
The victim’s daughter is among those urging the governor to grant clemency.
Tori Battle, who was 9 when her father was killed, asked Ivey to “consider extending grace to Mr. Burton and granting him clemency.”
“My father Doug Battle was many things. He was strong, but he valued peace. He did not believe in revenge,” she wrote in a letter to Ivey. The Associated Press was unable to reach her or other Battle family members for comment.
Six of the eight living jurors from the 1992 trial do not object to commutation, according to the clemency petition. Three are requesting it, saying they never would have recommended a death sentence if the shooter was getting a lesser sentence.
“It’s absolutely not fair. You don’t execute someone who did not pull the trigger,” Priscilla Townsend, one of the jurors, said in a telephone interview.
Townsend said they recommended a death sentence after an extremely emotional trial. Townsend said she still believes in the death penalty “for the worst of the worst,” but she said that is not Burton.
Attorney General Steve Marshall’s office opposed the clemency request.
“Burton was convicted of capital murder in April 1992 and that the jury unanimously recommended the death penalty. That conviction and sentence have been upheld at every level,” a spokesman for the office said.
Where the Supreme Court stands
Most people on death row were convicted of directly killing someone, but the U.S. Supreme Court allows the execution of accomplices under certain circumstances. Robin M. Maher, executive director of the Death Penalty Information Center, said the group has documented at least 22 cases where the person executed participated in a felony during which a victim died at the hands of another participant.
The U.S. Supreme Court in 1987 allowed accomplices who didn't pull the trigger to be sentenced to death if they displayed a “reckless indifference” for human life. Maher said that has created “arbitrariness among the jurisdictions.” Richard S. Jaffe, an attorney not involved with Burton’s case, said Alabama law requires that prosecutors show the accomplice had a “particularized intent to kill.” Burton’s lawyers have argued that intent was never established.
Clemency grants are rare in death row cases. Ivey has granted clemency once. However, Republican governors in several states have extended clemency for accomplices in murder cases. Oklahoma Gov. Kevin Stitt commuted a death sentence in November.
Family's pleas for mercy
Burton grew up with an alcoholic father who frequently beat him, according to sentencing documents. Despite that, he became a protector for younger members of the family, his sister Eddie Mae Ellison said.
Ellison said her brother “is not perfect, but he is not the person depicted by prosecutors."
Today, she said her brother is in a failing health. He is frail and uses a wheelchair or walker to get around outside his cell.
“He did not lay a hand on the man,” Ellison said. “Why do you feel it is necessary to take his life?”