Colley v. State
| Decision Date | 04 September 1979 |
| Docket Number | 4 Div. 648 |
| Citation | 405 So.2d 374 |
| Parties | Kelly COLLEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
H. E. Lane, Thomas E. Haigh, and S. Mark Jordan, Enterprise, for appellant.
Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.
Robbery with the aggravating circumstance of intentionally killing the victim; sentence: death by electrocution.
Some time around the hour of 3:00 and 3:15 p. m. on July 8, 1977, the appellant together with one Tommy Lewis (an indicted co-defendant) entered the service station of James O. Counts, Jr., better known as Junior Counts. They then robbed and intentionally killed him. Approximately thirty minutes before the fatal shooting, W. J.
Dukes, an employee of Graceville Oil Company who had filled Mr. Counts's gas tanks, observed two black males parked in front of the station. He identified Lewis as the passenger in the car as well as identifying the car as a 1974 light green Chevrolet Malibu. Later that evening the same car was seen in Montgomery by Officer R. B. Myland parked outside Lewis' residence with the appellant in the driver's seat. On July 12 the appellant was arrested in Montgomery for automobile theft. The arrest was based upon information supplied by a "cleared" suspect in an unrelated charge. The car proved to have been stolen from Troy, Alabama. The appellant was transported to the Pike County jail in Troy and held there until he became a suspect in the Counts killing. On July 16 Enterprise police, headed by Lt. Larry Baxter, assumed custody of the appellant and charged him with the robbery and intentional killing of Junior Counts under § 13-11-1, et seq., Code of Ala.1975, (Act No. 213, Acts of Ala.1975).
Appellant, on two separate occasions, petitioned the trial court for a change of venue-both before his trial, but once after the trial of his co-defendant Tommy Lewis. We need not review the first denial of appellant's motion where a subsequent motion for change of venue is filed and ruled on. Hawes v. State, 88 Ala. 37, 7 So. 302 (1890). However, due to the severity of the punishment, we shall do so.
Appellant presented extensive evidence and testimony in support of his initial motion for a change of venue. Included in the evidence received by the trial court were numerous newspaper articles recounting the killing of Mr. Counts. After a careful and deliberate review of each article and the testimony concerning each, we cannot find error in the trial court's ruling. The evidence presented did not illustrate the requisite prejudicial effect necessary to negate the ability of the appellant to receive an impartial trial and unbiased verdict. Additionally, no article contained any editorial comment. Each presented a factual account of the murder. Thus the appellant did not carry his burden in proving such prejudicial effect to the satisfaction of the trial court, for publicity alone is not sufficient to mandate a change of venue. McLaren v. State, Ala.Cr.App., 353 So.2d 24, cert. denied, Ala., 353 So.2d 35 (1977); Turk v. State, Ala.Cr.App., 348 So.2d 878 (1977); Peoples v. State, Ala.Cr.App., 338 So.2d 515 (1976); Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, cert. denied, 294 Ala. 761, 318 So.2d 801 (1974).
On appellant's second motion for change of venue, made after the trial of his co-defendant Tommy Lewis, appellant presented seven witnesses from the community. Three testified that he could not receive a fair and impartial trial in Enterprise. Another trio testified that it could be possible for the appellant to receive a fair and impartial trial, and one testified that he thought the appellant had pled guilty. Appellant also introduced numerous newspaper articles in support of his motion. The State offered two witnesses from the community who were of the opinion that the appellant could receive a fair trial in Enterprise.
After a careful review of all the evidence presented, we are not persuaded by appellant's argument. As previously stated, the burden is upon the appellant to illustrate actual prejudice to such an extent that negation of his right to a fair and impartial trial occurred. McLaren, supra, and cases previously cited. Although appellant's evidence does indicate some influence upon the community by the pretrial publicity of his co-defendant's trial, it does not go so far as to illustrate a completely biased public. This is evidenced from the fact that three of appellant's own witnesses stated they did not have opinions so fixed that they could not listen to the evidence and law and render an impartial decision. Consequently, the trial court's denial of appellant's motion was not erroneous.
Appellant offers as his third contention on this issue the argument that since he was indigent he could not transport, house, and feed his witnesses who had to travel from Montgomery to Enterprise and, therefore, should have been granted a change of venue. Title 15, § 91, Code of Ala.1940, Recompiled 1958, (now § 15-2-2, Code of Ala.1975) lays venue of a public offense in the county in which the offense was committed. Title 15, §§ 289-296, Code of Ala.1940, Recompiled 1958, (now § 12-21-240, et seq., Code of Ala.1975) grants the appellant the power to subpoena witnesses and grants the appellant certain remedies for securing attendance of his witnesses. In fact, the trial court issued attachments for several of appellant's witnesses. It therefore cannot be said that the appellant was without legal recourse to compel attendance of his witnesses. Venue may not be shifted from county to county merely for the convenience of witnesses. Therefore, this contention in support of a change of venue is without merit.
Appellant contends that the trial court erred to reversal in denying his motion for a psychiatric examination to determine his sanity at the time of the crime and his competency to stand trial. Appellant bases his argument primarily on the fact that he was indigent and therefore unable to procure the examination himself. Secondarily, appellant asserts that the trial court should not have denied his counsel the right to testify as to his mental condition during the hearing on that motion.
The trial court conducted a competency hearing to determine whether or not to order a psychiatric examination of the appellant. Appellant's only witness was Al Smith, an Alabama Pardon and Parole officer, who had conducted an investigation concerning an application for youthful offender status for the appellant. Officer Smith's testimony indicated that the appellant had used various drugs, drank approximately one case of beer a week, and frequently drank whiskey. Officer Smith's interview revealed that the appellant had above average responses to questions concerning dates, times, places, and people. He also testified that in his opinion the appellant was sane.
Title 15, §§ 425, 426, and 428, Code of Ala.1950, Recompiled 1958, (now §§ 15-16-20, -21, -22, Code of Ala.1975) provides similar methods by which a trial court may inquire into the sanity of a defendant before his trial. However, only when the evidence raises a reasonable doubt as to a defendant's sanity does such an inquiry become mandatory. Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971); Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974). Furthermore, the appellant has no right to receive a mental examination whenever he requests one. Pace v. State, 284 Ala. 585, 226 So.2d 645 (1969). Absent such a right, the motion is directed to the sound discretion of the trial court which is the proper screening agent for such. Dixon v. State, Ala.Cr.App., 357 So.2d 690 (1978). Appellant's evidence was not so compelling as to render the denial of his motion an abuse of discretion regardless of his indigency. Pace, supra; Gales v. State, Ala.Cr.App., 338 So.2d 436, 438, cert. denied, Ala., 338 So.2d 438 (1976); Bertrand v. State, 46 Ala.App. 7, 237 So.2d 118 (1970).
Secondly, appellant contends that he was denied the opportunity to present evidence in support of his motion when the trial court forced one of his counsel to step down from the witness stand. The district attorney objected when appellant's counsel took the stand. The trial court, in response to the objection and after informing the attorney of certain ethical considerations, stated:
Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950), only applies to prosecuting attorneys testifying and does not refer to the propriety of a defense attorney testifying. However, the above quoted colloquy indicates that the trial court at no time forced nor demanded appellant's counsel to step down. The attorney voluntarily stepped down without raising any objection. No reversible error resulted.
Appellant asserts as error the excusal of prospective jurors from the special and regular venire outside his presence and without his agreement or knowledge. He also asserts that the local act granting such power...
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