Brewer v. State

• Decision Date: 05 July 1983
• Docket Number: 6 Div. 808
• Citation: 440 So.2d 1155
• Parties: Charles Michael BREWER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1155

440 So.2d 1155

Charles Michael BREWER v. STATE.

6 Div. 808.

Court of Criminal Appeals of Alabama.

July 5, 1983.

Rehearing Denied Oct. 4, 1983.

Certiorari Denied Nov. 23, 1983

Alabama Supreme Court 83-49.

Joel L. Sogol of Sogol & Chandler, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L., Marston, III and Martha Gail Ingram, Asst. Attys. Gen., for appellee.

Charles Freeman, Dist. Atty., and Thomas M. Smith, Chief Asst. Dist. Atty., amicus curiae.

HUBERT TAYLOR, Judge.

Appellant was convicted of the murder of Diana Lynn Holland and sentenced to life imprisonment. He raises two issues on appeal: whether the empanelling of the grand jury which indicted him was illegal, and whether the evidence of his prior assault on another victim was improper. In our judgment, the grand jury was properly drawn and empanelled and appellant need not be reindicted, yet he is entitled to a new trial for the error of admitting the evidence of the collateral crimes.

Insofar as it relates to the issues on appeal, the State's evidence established that the nude body of twenty-year-old Diana Lynn Holland was found by a fisherman under the Sipsey River bridge in Tuscaloosa County at 10:30 a.m. on July 15, 1980. Miss Holland's neck and left wrist were bound with handkerchiefs, her ankles were tied together with a black brassiere, and she was wearing one sandal. Strewn on either side of her body were a pair of crutches. Expert medical testimony established that the cause of death was strangulation.

During her lifetime, Miss Holland had been afflicted with cerebral palsy and had used crutches to walk. She had been acquainted with appellant and had lived in the same apartment complex with him. According to a statement appellant gave Tuscaloosa Sheriff's investigators, Miss Holland had bought a stereo from appellant and had requested, the evening before her body was found, that appellant come by her apartment to check the stereo because it was not working. Appellant said the victim offered him a glass of lemonade, he drank it, and then he returned to his own apartment alone. He claimed that he was at home in bed by 10 p.m. that night.

Appellant denied that Miss Holland had ever been in his car, yet a consent search of his vehicle revealed that samples of hair on the trunk mat exhibited the same characteristics as known hair samples taken from the victim's body. Fragments of hair matching the victim's were also discovered on a roll of black electrician's tape in appellant's trunk. In addition, mechanic's rags found at the scene with Miss Holland's body contained the same chemical particles as similar rags in appellant's car trunk.

Over appellant's objection and after lengthy arguments were presented to the trial court, the State was allowed to call Ms. Wanda Sue Smith Reedy to the stand. Ms. Reedy testified that eight years earlier, when she was eighteen years old, she worked at the same company with appellant and dated him a few times. On December 17, 1973, as she was returning from work at 11:15 p.m., appellant's car passed hers on the highway. Appellant turned on the interior light of his vehicle and pulled into a nearby church parking lot. Ms. Reedy followed him and parked her car next to his.

Appellant walked to Ms. Reedy's vehicle, opened the door, told her to move over and put a knife to her throat. He began to choke her with an extension cord and, as Ms. Reedy struggled to get away, appellant struck her on the head with an unknown object and she blacked out. When she regained consciousness, she was fully clothed but had only one shoe on, appellant was gone, and the keys to her car were missing. Ms. Reedy walked to a relative's house nearby for help. Her car keys were later discovered in the trunk of her vehicle and a roll of white adhesive tape was found on the ground at the scene.

The trial court admitted the foregoing testimony with prior limiting instructions that the jury was to consider it "solely on the question of identity and intent or motive." (R. 739)

I

Appellant claims that his plea in abatement was due to be granted because of alleged fraud in empanelling the grand jury which indicted him. He contends that one member of the grand jury venire had been illegally carried over from a preceding grand jury term in violation of § 12-16-70 (amended by 1981 Ala.Acts 1381, No. 788 § 2 (effective January 1, 1982)) and § 12-16-75 (repealed by 1981 Ala.Acts 1381, No. 788 § 8 (effective January 1, 1982)). Those sections provided in pertinent part, the following:

" § 12-16-70.

"At any session of a court requiring jurors for the next session, the judge ... shall draw from the jury box in open court the names of not less than 50 persons to supply the grand jury for such session...."

" § 12-16-75.

"The names of all jurors drawn and summoned under this article who are not empanelled shall forthwith be returned by the judge to the jury box in open court, unless they are disqualified or exempt."

Testimony on the plea in abatement established that Mr. Therman Lee was summoned as a potential juror for the first January term of the Tuscaloosa County grand jury. Judge Claude Harris, Jr. excused Mr. Lee from service and told him that he could serve on the grand jury for the next (second January) term. Thereafter, Mr. Lee's name was given to the Circuit Clerk, who kept it until the following term of court.

Circuit Clerk Doris Turner stated that for the following term, that of the grand jury which handed down the indictment against appellant, the judge drew only forty-nine names from the jury box. The fiftieth name was that of Mr. Therman Lee, who had been carried over or "rescheduled" after being excused from service during the previous term.

Further testimony, taken in the light most favorable to the State, showed that Mr. Lee served on a grand jury during the second January term, but that he was not a member of the grand jury which voted to indict appellant or which heard evidence pertaining to the charges in the instant case.

Appellant argues that Mr. Lee's being carried over from one grand jury term to the next contravened the statutory requirement that the names of those jurors who are not empanelled must be returned to the jury box. He also maintains that the "rescheduling" of Mr. Lee as the fiftieth potential juror for the succeeding term violated the statutory rule that the judge draw fifty names from the jury box in open court. Thus, appellant concludes, the indictment against him was returned by an illegally-constituted grand jury and was therefore due to be quashed.

Initially we note that the provisions of §§ 12-16-70 and 12-16-75 are "directory merely and not mandatory." Ala.Code § 12-16-90(a) (1975). Although case law has established some provisions to be mandatory, notwithstanding expressed legislative intent to the contrary, see Ziniman v. State, 186 Ala. 9, 65 So. 56 (1914) (requirement that defendant be served with jury list in capital case) (dicta), both the number of jurors drawn and the time of their drawing have been held to be merely directory and not to affect the legality of the panel. Dobbins v. State, 274 Ala. 524, 149 So.2d 814 (1963), cert. denied, 376 U.S. 923, 84 S.Ct. 681, 11 L.Ed.2d 617 (1964); Rector v. State, 11 Ala.App. 333, 66 So. 857 (1914).

Further, § 12-16-90(b) provides that

"The jurors selected, drawn, summoned and empaneled under the provisions of this article, whether at an earlier or later day than required by this article, must and shall in all respects be deemed legal and to possess in full in every respect power to perform all of the duties belonging to grand and petit jurors." (Emphasis added.)

In our judgment, the fact that Mr. Lee's name was drawn at a different time from the names of the other forty-nine venire members does not undermine the authority of the grand jury on which he served. The statutes concerning jury selection require only substantial compliance. Lehr v. State, 398 So.2d 791 (Ala.Cr.App.1981). There is no contention that Lee's name was not originally drawn by the judge in open court, merely that it was drawn on a different occasion from the drawing of the other forty-nine names comprising the grand jury venire. See Ala.Code § 15-15-40 (1975).

Additionally, the trial court had the authority not to return Mr. Lee's name to the jury box but to inform him that he could serve during the next term of court, according to § 12-16-63, Code of Alabama 1975, which states:

"(b) A person who is not disqualified for jury service may be excused from jury service by the court only upon a showing of undue hardship, extreme inconvenience or public necessity, for a period the court deems necessary, at the conclusion of which the person may be directed to reappear for jury service in accordance with the court's direction." (Emphasis added.)

Finally, it is our opinion that even if the summoning of the grand jury on which Mr. Lee served had been marred by a slight irregularity, the failure to comply with statutory requirements does not entitle appellant to relief in the absence of fraud. "Fraud used in this sense has been construed as encompassing more than criminal wiles: 'Fraud is a relative term; it includes all acts and omissions which involve a breach of legal duty injurious to others.' " State ex rel. Gregg v. Maples, 286 Ala. 274, 280, 239 So.2d 198, 203 (1970) (quoting Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 227, 23 So.2d 874, 875 (1945) (emphasis added)).

Because Mr. Lee took no part in hearing the evidence of, or voting to indict appellant for, the instant offense, any irregularity relating to the grand jury of which Lee was a member cannot have affected appellant. As this court stated in Hammond v. State, 354 So.2d 280, 286-87 (Ala.Cr.App.1977), cert. quashed, 354 So.2d 294 (Ala.1977), cert. denied, 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d 115 (1978),

"As it relates to composition of grand juries, the fraud necessary...