Davis v. State, 2 Div. 432

• Decision Date: 09 October 1984
• Docket Number: 2 Div. 432
• Citation: 457 So.2d 992
• Parties: Glen DAVIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 992

457 So.2d 992

Glen DAVIS v. STATE.

2 Div. 432.

Court of Criminal Appeals of Alabama.

Oct. 9, 1984.

James M. Barnes, Jr., Marion, for appellant.

Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Glen Davis, convicted of second degree assault in shooting his mother-in-law, was sentenced as a recidivist to life imprisonment. From his conviction he pursues this appeal.

The state's evidence tended to indicate that the defendant entered the residence of one Barbara Cook in Moundville, Alabama. This residence was located next door to the residence of Lue Ella Cook, his mother-in-law, who was the victim in this case. The appellant shot his mother-in-law as well as his wife, Chine Davis. He was arrested a short time later, three blocks away, and was charged with burglary and with two counts of first degree assault. The jury convicted the appellant of second degree assault. The state presented into evidence certified copies of three prior felony convictions, and the court sentenced the appellant to life imprisonment in the penitentiary.

I

Appellant contends first that the court erred in denying his motions for a mistrial on the grounds that one of the jurors had been seen speaking to the victim during a recess. The court immediately held a hearing out of the jury's presence and gave counsel the opportunity to question the juror. The court then stated:

"THE COURT: Well, it's a touchy thing. My thinking is the best thing for me is just to admonish the jury not to have any contact with parties and let the thing go. If you bring the juror in now and question her it is almost certainly going to cause a mistrial situation one way or the other just based on the affect of that individual questioning. But I'll leave it up to the defendant. If you want her questioned at this time and only questioned by the Court with a specific understanding that the case will proceed if there is no prejudice shown, then we'll go ahead. Otherwise, I'll allow you to question her or otherwise I'm going to say that your objection is noted and we'll look into it after the verdict."

The motion for mistrial was then denied.

After the verdict was brought in, the court then proceeded to have another hearing at which both Mrs. Cook and juror Lewis were questioned. It turned out that they were childhood friends who had not seen each other for a period of thirty-five years. Mrs. Cook said that she did not recognize Mrs. Lewis and it was during the break in the proceedings that Mrs. Lewis recognized Mrs. Cook. Questioned at length, each of these ladies denied talking about the case at all. Mrs. Lewis said that the conversation had nothing to do with the case that was being tried. She testified that her guilty vote in the case came solely from the facts that she heard in her role as a juror.

Whether or not to grant a mistrial is a matter within the discretion of the trial court. Walker v. State, 416 So.2d 1083 (Ala.Crim.App.1982); Wood v. State, 416 So.2d 794 (Ala.Crim.App.1982); Bowman v. State, 401 So.2d 333 (Ala.Crim.App.1981); Edgeworth v. State, 304 So.2d 911, 54 Ala.App. 93 (Ala.Crim.App.1974). A trial court will not be reversed for denying a motion for mistrial unless a clear abuse of discretion is shown. It is apparent in this case that the court was doing its best to see that the appellant got a fair trial and was also doing its best to salvage the trial, if possible. It is the duty of the court to attempt to salvage a trial by curing potential error if possible, thereby saving the public the time and expense of another trial, and sparing the victim the stress of yet another court appearance. The denial of the mistrial motion was not arbitrary. The court and appellant's counsel discussed the best way to handle the situation. Alternatives were considered, and appellant's counsel had an opportunity to question the juror and did not do so. We find nothing but correct conduct on the part of the trial judge in this regard.

II

Appellant next contends that the appellant's right to a fair trial was denied when the prospective juror, Mrs. Annie Julia Lewis, failed to answer "yes" to the question whether any prospective jurors knew Lue Ella Cook. On the basis of the testimony of Mrs. Cook and Mrs. Lewis, Mrs. Lewis quite properly did not answer in the affirmative at that time, since she had not recognized Mrs. Cook as her childhood acquaintance of 35 years before. This was, at the time, a truthful response. It is not every failure to respond to voir dire questions which entitles appellant to a new trial.

In Pugh v. State, 355 So.2d 386 (Ala.Crim.App.), cert. denied, 355 So.2d 392 (Ala.1977), this court, quoting the Alabama Supreme Court in Freeman v. Hall, 286 Ala. 161, 238 So.2d 330, stated as follows:

"Although the factors upon which the trial court's determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.

"We are mindful of the heavy responsibility placed on the trial court to maintain the statutory right which parties have to a full and truthful disclosure by jurors on voir dire. However, we must also be aware of inadvertent concealment and failure to recollect on the part of prospective jurors."

Again, in Pugh, this court stated:

"This Court will review the trial court's ruling on motion for new trial predicated on a juror's failure to answer questions propounded on voir dire examination only for abuse of discretion in...