Deramus v. State

• Decision Date: 17 October 1997
• Citation: 721 So.2d 239
• Parties: Martin Eric DERAMUS v. STATE.
• Court: Alabama Court of Criminal Appeals

721 So.2d 239

Martin Eric DERAMUS v. STATE.

CR-95-1924.

Court of Criminal Appeals of Alabama.

October 17, 1997.

Rehearing Denied December 19, 1997.

Ralph L. Armstrong, Bessemer; and Virginia Vinson, Birmingham, for appellant.

Bill Pryor, atty. gen., and Rosa H. Davis, asst. atty. gen., for appellee.

BROWN, Judge.

The appellant, Martin Eric Deramus, was convicted of trafficking in cocaine, a violation of § 13A-12-231, Code of Alabama 1975. The trial court sentenced him to 20 years' imprisonment.

I.

The appellant contends that the jury's verdict was void because, he says, the petit jury that convicted him was not properly sworn. Section § 12-16-170, Ala.Code 1975, provides:

"The following oath shall be administered by the clerk, in the presence of the court, to each of the petit jurors: `You do solemnly swear ... that you will well and truly try all issues which may be submitted to you during the present session ... and true verdicts render according to the evidence — so help you God.'"

In support of his argument, the appellant cites several cases that have held that the record must affirmatively reflect that the petit jury was sworn and that, absent such showing, the jury's verdict is a nullity. Porter v. State, 520 So.2d 235 (Ala.Cr.App.1987); Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987); Fowler v. State, 261 Ala. 262, 74 So.2d 512 (1954). However, the facts of this case are distinguishable from those in the cases cited by the appellant.

Approximately a week after the jury returned its verdict, the state filed a motion to supplement the record, seeking to add an affidavit from the circuit clerk concerning the swearing of the jury.¹ The trial court granted the state's motion. The circuit clerk stated in his affidavit that he administered the following oath to the prospective jurors before the jury was qualified and empaneled:

"`Do you and each of you solemnly swear or affirm that you will well and truly answer all questions asked of you by the Court as to your general qualifications to serve as a juror and that you will well and truly try all issues and execute all writs of inquiry submitted to you and true verdicts render according to the law and evidence, so help you God?'"

(C.R.37.) The oath administered by the circuit clerk tracks the language contained in Rule 12.1(c), Ala.R.Crim.P., which pertains to the qualification of the jury venire, and it also satisfies the oath required under § 12-16-170, Ala.Code 1975.

Rule 18.5, Ala.R.Crim.P., provides that the trial court has the option either of reminding the jurors who have been selected to hear the case that they are still under oath, or of administering the following oath:

"You do solemnly swear, or affirm, that you will well and truly try all issues joined between the defendant(s) and the State of Alabama and render a true verdict thereon according to the law and evidence, so help you God."

The record does not reflect whether the trial court reminded the jurors of their previous oath or whether it administered a second oath to them. Even assuming that the trial court failed to exercise either option, we find that the trial court's omission, under the facts of this case, constitutes harmless error. Rule 45, Ala.R.App.P.

Our research has revealed no Alabama case addressing the application of the harmless error doctrine to a trial court's failure to administer the oath to the petit jury. However, in People v. Smith, 848 P.2d 365 (Colo. 1993), the Supreme Court of Colorado dealt with a defendant's contention that the trial court committed reversible error by failing to readminister the oath to the jurors selected to hear the case. That Court noted that two oaths were given to the potential jurors. The first oath — that the jurors answer questions truthfully — was administered before the jury questionnaires were distributed. The second oath — that the jurors well and truly try the case — was administered to the potential jurors who had survived challenges for cause. This particular oath was given before the parties exercised their peremptory challenges. The Colorado Supreme Court held that although "[t]he better practice is to give the oath to truly try the case solely to the jurors selected to hear the case ... absent any showing of prejudice by the defendant, the administration of the oath to the panel of jurors [after challenges for cause were completed and] before the exercise of peremptory challenges [did] not constitute reversible error." Id. at 372.

The record in this case reveals that the oath administered by the circuit clerk to the potential jurors encompassed two oaths — one to truthfully answer all questions asked by the court and another to truly try the case and render true verdicts based on the law and the evidence. Thus, the jurors who were eventually selected to try the case did, in fact, swear to the substance of the oath contained in § 12-16-170, Ala.Code 1975. Accordingly, this case is distinguishable from those cases cited by the appellant in support of his contention that his conviction is void. In each case cited by the appellant, the record on appeal did not disclose that the jury was sworn at all. See, e.g., Tarver v. State, supra. Because there is an affirmative showing in the record on appeal that the jurors in this case were sworn, and that their oath closely paralleled the language in § 12-16-170, Ala.Code 1975, we find that the trial court did not commit reversible error in failing to re-swear the jury or to remind the jury of its prior oath.

II.

The appellant next contends that the trial court committed reversible error in refusing to give a supplemental jury instruction on entrapment that he requested.

The trial court's instruction stated:

"Now ladies and gentlemen, I told you earlier that in addition to the plea of not guilty, that the Defendant has also asserted the defense of entrapment. To convict the Defendant in this case, the State must prove beyond a reasonable doubt that the Defendant was not incited, induced, lured, or instigated by a state officer to commit a criminal offense, which the Defendant otherwise would not have committed, and which the Defendant had no intention of committing. The defense of entrapment does not apply if the Defendant was predisposed to commit the crime; in order for entrapment to occur the law enforcement officer must actually implant the criminal design in the mind of the Defendant, who was not predisposed to commit the crime. Ladies and gentlemen, a drug transaction may be initiated by an undercover agent without a defendant's being instigated, induced or lured, as those words are generally used in the definition of the defense of entrapment. The fact that a buyer made initial contact with the seller is not an inducement within the contemplation of entrapment."

(R. 588-89.) The appellant did not object to the trial court's initial instruction on entrapment.

After their deliberations had begun, the jurors requested that the trial court recharge them on entrapment. In response, the trial court repeated the above-quoted charge. The appellant then stated:

"At no time, Your Honor, did the Court in response to the question of redefining the defense of entrapment, ... state this: `Once an issue is raised the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the charged offense.' And we would request the Court at this time to add [this] to the definition which the Court did upon the jury's request, when they asked the Court to give ... and redefine the defense of entrapment."

(R. 606.)

The trial court responded:

"If I recall the issue hasn't been raised to the Court, and [this Court] wouldn't have given it in the first place."

(R. 607.)

"A request to instruct or an objection to an instruction that is made when the jury returns with a question or for reinstruction is untimely." Smith v. State, 601 So.2d 201, 206 (Ala.Cr.App.1992). See also Goins v. State, 521 So.2d 97 (Ala.Cr.App.1987). The appellant asked that ...