Burnett v. State

• Decision Date: 16 August 1977
• Docket Number: 6 Div. 316
• Citation: 350 So.2d 718
• Parties: Olynn Kenneth BURNETT, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 718

350 So.2d 718

Olynn Kenneth BURNETT, Jr. v. STATE.

6 Div. 316.

Court of Criminal Appeals of Alabama.

Aug. 16, 1977.

Rehearing Denied Oct. 4, 1977.

Walter Joe James, Jr., James & Lowe, Haleyville, for appellant.

William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.

BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, a non-indigent represented here and at nisi prius by employed counsel, was indicted for assault with intent to murder, convicted therefor with punishment fixed by the court at twenty years imprisonment.

The alleged offense took place on January 11, 1976, not far from Haleyville, in Winston County. The time was about 11 p. m. The victim was a deputy sheriff.

At the same time of the preceding incident, defendant allegedly shot and killed another person. Deputy Sheriff Dennis Rowe, who, along with the victim in the instant case, Chuck Thompson, was on night patrol duty in Winston County.

The two offenses occurred at or near a motel building formerly owned by defendant's deceased father.

We think it is clear from the evidence taken on defendant's motion for a change of venue that defendant, his father, who was killed a short while before January 11, 1976, in a truck accident, and also defendant's step-mother, along with one or two others, were engaged in the illicit sale of alcoholic beverages and used this motel building as headquarters, more or less, for these illicit operations.

These operations naturally invited the two officers, Rowe and Thompson, to patrol that area in quest of law violations. However, the shooting occurred when the officers stopped near the motel to check a young man who had driven his car in a ditch. They had just checked the young man's driver's license, when, according to the evidence of Thompson (presented at the main trial), defendant passed them, stopped and backed up. That is when the shooting occurred. So far as the evidence of Thompson reveals, neither he nor Rowe had drawn a gun when defendant fired his pistol at the head of Rowe and fatally wounded him. Then he fired at Thompson at close range, and, as he retreated, fired some more shots at Thompson who ducked and returned the fire. Neither Thompson nor defendant was hit by the exchange of shots. Thompson contacted fellow officers who went to the scene where Rowe lay fatally wounded.

It appears from the record that defendant was tried on May 17, 1976, and given life for the murder of Rowe. Defendant's case for the offense against Thompson was also set on the same day, May 17, 1976, but continued by the court ex mero motu until June 28, 1976, at which time it was tried.

It also appears in the record that a qualified jury was selected for the trial of the We note that in both cases defendant filed timely motions for a change of venue. In this opinion we only consider the motion for such change and a continuance in the instant case and not the motion in the murder case.

murder case, and some jurors were excused because they were not qualified. The remaining jurors were brought back for trial of the instant case reset for trial on June 28, 1976. No objection was made to these returning jurors because of this procedure. We therefore pretermit writing thereto.

A jury was selected from the returning jurors who rendered a verdict of guilt of assault with intent to murder. They deliberated thirteen minutes.

We also note that the State put up only one witness, Chuck Thompson, who testified positively that defendant fired the fatal shot at Rowe and also shot at him. Defendant did not take the stand or offer any evidence. The only issue here presented and argued by appellant is the denial of his motion for a change of venue and for a continuance.

We now advert to the motion for a change of venue and the Court's denial of the motion.

We first note that the 1970 population of Winston County was 16,654 with something like a two to four thousand subsequent increase. A majority of the people live on the west side of the county where Haleyville is located.

Winston County is served by one local newspaper, the Northwest Alabamian, which is published at Haleyville. It is distributed throughout Winston County and other areas.

The county is also served by the Birmingham News, which had at the time a daily circulation of about 1,000 and a Sunday distribution of about 1,500 in Winston. News was also disseminated by television and radio from Birmingham; as well as a radio station in Winston. All this media covered news items about the homicide and the assault on Thompson. The Birmingham News items about the shooting were saturated with assertions, the product of inquiries addressed to some officers and some unreliable communicants, that certain criminal elements were run out of Tennessee by the late Buford Pusser, an alert, active and courageous sheriff in the area, and found lodgment in Winston County; that they were spearheaded by the deceased Burnett, with the aid of his wife and defendant. In other words, the news stories in the Birmingham News, with prominent space coverage, were circulated to impress the readers that Winston County was a haven for law violators under the direction and control of the Burnett family. These publications about such an orgy of crime in Winston County only lasted about three days right after the shooting incident. Thereafter, there was only an occasional reference to the shooting. These later references were free of a sensational tone.

The local paper covered news items about the homicide that were ample in coverage, but reasonably free of sensational tones and did not implicate the Burnett family as the leaders of a crime gang from Tennessee. We think it is undisputed that the Burnetts were freely bootlegging alcoholic beverages with headquarters at the motel which burned after the shooting incident. The cause of the fire does not appear in the record. It can be said with certainty that the Burnetts were not engaged in any church related activities.

It further appears that some interested person went so far as to call on the Attorney General to intervene and take charge of the alleged crime situation in Winston. In other words, we are certain that the shooting incident created a furor among the law enforcement officers of Winston and probably among some of the officers of neighboring counties. A reasonable inference may be drawn that the incident and the attendant media publicity created, temporarily at least, widespread resentment among the law abiding people in Winston against the Burnett family conduct.

It further appears that some substantial citizens of Winston, right after the shooting, spearheaded public solicitations of money When the funeral procession of the deceased officer was set up, it was escorted, in the judgment of the witness, the funeral director, by 60 to 75 peace officers, including the sheriff's department and the Highway Patrol, who led the procession.

to help pay the funeral expenses of Deputy Rowe. These solicitations were made both in Haleyville and Double Springs by contacting different citizens in the respective area of each town. Several hundred dollars for such expenses were contributed.

It also appears from the evidence that the funeral procession deviated from the usual route and circled around the business Mall at Haleyville, except the east end of the Mall. The witness said he followed the procession and that he had no instructions from the family to make this deviation. It was not the shortest route to Addison where the body was interred. The witness said it was the largest body of officers attending a funeral that he had ever seen in his lifetime. After leaving Haleyville with the body the procession proceeded to Double Springs (the county seat) and circled the courthouse, then to Addison. The procession traveled approximately thirty-six miles. The witness further testified that the detour around the Mall in Haleyville and around the courthouse at Double Springs were the only deviations from the normal and logical route from Haleyville to Addison.

Despite the notoriety resulting from newspaper publications, the radio and television broadcasts, and the funeral procession, there were substantial evidentiary assessments by witnesses that defendant could obtain a fair and impartial trial in Winston County.

R. L. Shirley, News Editor of the Northwest Alabamian, who lived in Haleyville, testified for defendant (R. 206), and said that the wild reporting would not affect him if he were on the jury, that he would go with the evidence, and that in his opinion defendant could get a fair trial.

John Slatton, operator of the radio station in Haleyville, called as a witness by defendant, testified (R. 266) that he believed there were other people in Winston County who agreed with his views about being able to render a fair and impartial verdict, but that there is some prejudice anywhere in every case.

Larry Brewer, called by defendant, a resident and mayor of Double Springs,...