Cardwell v. State

• Decision Date: 08 March 1988
• Docket Number: 4 Div. 897
• Citation: 544 So.2d 987
• Parties: George Robert CARDWELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 987

544 So.2d 987

George Robert CARDWELL v. STATE.

4 Div. 897.

Court of Criminal Appeals of Alabama.

March 8, 1988 and March 17, 1989.

Rehearing Denied April 12, 1988.

Certiorari Quashed Feb. 24, 1989 Alabama Supreme Court 87-869.

On Return to Remand May 26, 1989.

William J. Paul, Geneva, for appellant.

Don Siegelman, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

TYSON, Judge.

George Robert Cardwell appeals his conviction in the Circuit Court of Geneva County, Alabama had pursuant to § 13A-7-7, Code of Alabama 1975. Following a jury verdict of "guilty", a sentence of 30 years' imprisonment in the state penitentiary pursuant to the Habitual Felony Offender Act was imposed.

Prior to the trial, appellant's counsel filed a motion to dismiss the indictment due to an alleged biased grand jury. Mrs. Brenda Eldridge, the wife of the Honorable Phil Eldridge, Assistant District Attorney for Geneva County, Alabama was a member of the grand jury during this term and participated in the deliberations leading to the return of the indictment of the appellant.

At the hearing on this plea and motion in which the issues are discussed, the following occurred:

"The court finds that due to an infected vocal cord, Mrs. Eldridge was unable to make noise at all. In other words, she couldn't talk. The court further finds from her testimony and the testimony of the foreman of the Grand Jury, that she had little, if no influence on the Grand Jury at all and the fact that she was the wife of an Assistant District Attorney had no effect or influence on the Grand Jury, its deliberations, its vote or its decisions in any cases.

"The court finds that the Grand Jury was legally constituted, properly impaneled and sworn. The court further finds that the Grand Jury was not predisposed to find one way or another at the time of its selection.

"The court finds that the Grand Jury had no preconceived bias in favor of the state so far as this defendant is concerned or any of the defendants. Order and motion to dismiss the indictment denied." (R.P. 26)

I

We remand this cause to the Circuit Court of Geneva County, Alabama with directions that the appellant and his counsel be present and that a hearing be conducted on the issue as originally raised. We further direct that a transcript of the hearing be prepared with appropriate findings set forth in writing by the trial judge determining whether or not there had been confidential information with reference to this cause exchanged between the Assistant District Attorney and his wife, or any discussions concerning this matter at any time between them, prior to the return of this indictment.

Should the trial judge find that Mrs. Eldridge possessed no disqualifying knowledge when the grand jury was convened nor, in fact, were there any discussions prior to the return of the indictment, then Mrs. Eldridge was competent to serve as a member of the grand jury in question. Eddings v. State, 443 So.2d 1308 (Ala.Cr.App.1983). See also Noah v. State, 494 So.2d 870 (Ala.Cr.App.1986).

Because of the necessity to clarify this issue, i.e., whether or not there were discussions between the Assistant District Attorney and his wife concerning this case prior to the convening of the grand jury, or during its deliberations, we hereby remand this cause

for the hearing as stated. We further direct that a full hearing be conducted on the issues, as herein set forth, that both Mr. and Mrs. Eldridge be examined and that a transcript of such proceedings be promptly prepared and returned to this court, together with the trial court's written findings. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956).

REMANDED WITH DIRECTIONS.

TAYLOR, PATTERSON and McMILLAN, JJ., concur.

BOWEN, P.J., dissents with opinion.

BOWEN, Presiding Judge, dissenting.

I respectfully but vigorously dissent from the order of the majority remanding this cause so that the trial court might again do what it has already done.

The findings of the trial court are set out in the majority opinion. Those findings reflect that an evidentiary hearing was held after which the judge concluded that the fact that a member of the grand jury was the wife of an Assistant District Attorney "had no effect or influence on the Grand Jury, its deliberations, its vote or its decisions in any case." In my opinion, the appellant should not be given the opportunity to impeach the trial court's findings at a second evidentiary hearing.

My review of the record discloses that there was no request that the hearing be transcribed and made a part of the record on appeal. I have found no objection in the record to the manner in which the hearing was conducted. There was no motion for new trial. There is no motion to correct the record. Rule 10(f), A.R.A.P. Rule 10(d) specifically provides: "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection." There has been no motion filed pursuant to this rule.

The decision of the majority violates several fundamental principles of appellate practice, procedure, and review. "An appellant 'bears the burden of bringing the record before an appellate court. He and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a correct record.' Harris v. State, 420 So.2d 812, 816 (Ala.Cr.App.1982) (citations omitted).... Rule 10(f), Alabama Rules of Appellate Procedure, 'specifically authorizes the correction of an omission from the record.' Pope v. State, 387 So.2d 300, 301 (Ala.Cr.App.1980) See also Weaver v. State, 401 So.2d 344 (Ala.Cr.App.1981). Since this rule has not been invoked to supply the complained of omission, there is nothing for this court to review." Welch v. State, 455 So.2d 299, 300 (Ala.Cr.App.1984).

"[I]n the absence of the evidence and proceedings on the trial, all presumptions must be indulged in favor of the trial court. Error cannot be presumed." Thomas v. State, 231 Ala. 606, 607, 165 So. 833 (1936). "When there is no showing to the contrary, the presumption is always in favor of correct action on the part of the trial judge." Ballard v. State, 236 Ala. 541, 542, 184 So. 260 (1938). "It is also the well established rule that doubtful recitals must be construed most strongly against the excepter.... Appellant has the burden of showing reversible error, and error must affirmatively appear." Id. "Substantial error is not presumed, but the burden is upon the appellant to show error." Edwards v. State, 274 Ala. 569, 570, 150 So.2d 710 (1963). "A reviewing court cannot predicate error on matters not shown by the record. Indeed, a silent record supports a judgment. It is the appellant's duty to file a correct record." Robinson v. State, 444 So.2d 884, 885 (Ala.1983) (citations omitted). A finding by a court, sitting without a jury, on the oral testimony of witnesses, will not be reversed on appeal "unless plainly erroneous." Scruggs v. State, 165 Ala. 121, 51 So. 302, 303 (1909).

Even when these rules are followed, the appellate process often seems endless. By its decision in this case, the majority does away with what little finality remains in the judicial process. In my opinion, the ruling of the trial judge must be affirmed

because there is nothing in the record to contradict his findings.

SECOND OPINION

TYSON, Judge.

On March 8, 1988, this court determined that the prior hearing in this cause failed to properly develop the issue of any prior knowledge or discussion had by and between Mrs. Brenda Eldridge as wife of the Honorable Phil Eldridge, Assistant District Attorney for Geneva County, Alabama, and Eldridge, with reference to the participation by and deliberations within the grand jury of Geneva County, Alabama, which returned an indictment against this appellant.

As noted in our prior opinion, it is necessary to clarify this issue to whether or not there were any discussions between the assistant district attorney and his wife concerning the case prior to the convening of the grand jury or during its deliberations.

We hereby remand this cause for a further hearing to clarify this issue.

A due return shall be promptly prepared following such hearing and returned to this court together with the trial court's findings of fact on this issue. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956) and Cardwell v. State, supra.

REMANDED WITH DIRECTIONS FOR HEARING.

All the Judges concur.

ON RETURN TO REMAND

TYSON, Judge.

George Robert Cardwell was indicted for burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. The jury returned a verdict of "guilty" and George Robert Cardwell was sentenced to 30 years' imprisonment in a state penitentiary pursuant to the Alabama Habitual Felony Offender Act.

On January 12, 1987, this appellant, Cardwell, and Richard Allen Bryant broke into the Marsh Barber and Thrift Shop in Geneva County, Alabama. Entry was gained through an air ventilation duct that had not been used since the building was formerly a restaurant. The air duct was boarded up with plywood and nails which were pried away in order to gain access. The air duct was not on ground level, thus, a person would need some type of elevation to enable them to crawl into this duct.

Richard Allen Bryant was staying with the Cardwells while he was visiting their granddaughter. He had been at the Cardwell home for a couple of weeks at the time of this burglary. The appellant also lives with his parents and brother. On the day in question the appellant, Cardwell, and Richard Allen Bryant had been drinking heavily.

There was an eyewitness to the burglary. Luke Speigner, a nine-year-old boy, saw this appellant helping Richard Allen Bryant into the air duct. The boy...