Dixon v. State ).

• Decision Date: 30 June 2010
• Docket Number: 1071564.
• Citation: 55 So.3d 1257
• Parties: Ex parte Roger DIXON(In re Roger Dixonv.State of Alabama).
• Court: Alabama Supreme Court

55 So.3d 1257

Ex parte Roger DIXON(In re Roger Dixon

v.State of Alabama).

1071564.

Supreme Court of Alabama.

June 30, 2010.

Paul M. Harden, Sr., of Harden & Harden, LLC, Monroeville, for petitioner.Troy King, atty. gen., and John M. Porter, asst. atty. gen., for respondent.MURDOCK, Justice.

Roger Dixon was convicted of attempted murder and of discharging a firearm into an occupied vehicle.¹ Dixon filed a motion for a new trial alleging, among other things, (1) that several jurors failed to truthfully answer questions during voir dire, and (2) that the trial court improperly restricted Dixon's cross-examination of a prosecution witness. Dixon's motion for a new trial was denied after an evidentiary hearing. The Court of Criminal Appeals affirmed Dixon's convictions and sentences by an unpublished memorandum, from which Judge Welch dissented, with an opinion. Dixon v. State, 55 So.3d 1250 (Ala.Crim.App.2008) (Welch, J., dissenting).

Dixon filed a petition for a writ of certiorari contending, among other things, that the decision of the Court of Criminal Appeals conflicts with Ex parte Dobyne, 805 So.2d 763 (Ala.2001), and Tomlin v. State, 695 So.2d 157 (Ala.Crim.App.1996), regarding Dixon's claims that several jurors failed to truthfully answer questions during voir dire. We reverse and remand. In light of our disposition of Dixon's argument regarding the voir dire of one of the jurors, we pretermit consideration of Dixon's other claims.

I. Facts

In light of the nature of the dispositive issue, only a brief summary of the substantive facts is necessary. Between June 2004 and May 2005, Dixon had repeated altercations with David Jackson concerning Dixon's relationship with Jackson's estranged wife. During the early morning hours of May 14, 2005, Dixon encountered Jackson and Brad Carey at a convenience store.

At trial, Dixon testified and disputed the State's version of the facts regarding his encounter with Jackson and Carey. According to Jackson, Dixon threatened to kill him, fired several gunshots, one of which struck Carey's vehicle, and then chased Carey and Jackson in his vehicle at a high rate of speed when they left the convenience store. In contrast, Dixon testified that he fired his gun into the air during the encounter because he was afraid of Jackson and Carey and that he did not follow Jackson and Carey when they left the convenience store.

As to the dispositive issue in this case, Dixon contends that L.A., who served as a juror at his trial, failed to respond correctly to the following question asked during voir dire of the venire:

“Have you or a member of your immediate family ever been a criminal defendant in a criminal case in either the district court or the circuit court in this county where [the district attorney or any of his assistants] prosecuted the case?”

L.A. did not respond to this question; however, criminal charges were pending against her at the time of Dixon's trial. About two months before Dixon's trial, L.A. had been twice charged by family members with a misdemeanor. ² The charges had been served on L.A., and she had posted an appearance bond in each case. About a week before Dixon's trial, L.A.'s case had been continued by the trial court. At the time of Dixon's trial, L.A. personally was engaged in discussing the disposition of the charges with the district attorney. Shortly after Dixon's trial, L.A.'s case was placed in pretrial diversion status.

At the hearing on Dixon's motion for a new trial, the trial court heard testimony from L.A. and from Dixon's trial counsel. The trial court did not make any written findings of fact as to the claim regarding L.A.'s failure to disclose the pending criminal charges in response to the question posed on voir dire and did not indicate on the record the basis for its decision denying Dixon's motion for a new trial. Comments by the trial court at the hearing suggest that it thought the question asked during voir dire was ambiguous.

II. Standard of Review

In Ex parte Dobyne, 805 So.2d at 772, this Court stated:

“[T]he proper standard to apply in determining whether a party is entitled to a new trial in this circumstance [where a juror fails to respond correctly to a question on voir dire] is ‘whether the defendant might have been prejudiced by a veniremember's failure to make a proper response.’ Ex parte Stewart, 659 So.2d [122] at 124 [ (Ala.1993) ]. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court's discretion.”

Id. See also Reynolds v. City of Birmingham, 723 So.2d 822, 824 (Ala.Crim.App.1998) (“ ‘[T]he ruling of the trial judge denying a motion for new trial will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge every presumption in favor of the correctness of his ruling.’ ” (quoting Hall v. State, 348 So.2d 870, 875 (Ala.Crim.App.1977))).

III. Analysis

Dixon contends that the trial court should have granted his motion for a new trial because L.A., who served on the jury that convicted him, failed to respond to the above-referenced question during voir dire. As noted, the trial court did not make any written findings of fact as to this issue and did not indicate on the record the basis for its decision to deny Dixon's motion for a new trial, which was grounded, in part, on L.A.'s failure to respond to the question. In affirming Dixon's conviction, the Court of Criminal Appeals concluded that L.A.'s failure to disclose information about the criminal charges pending against her was inadvertent, rather than willful. That court also determined that there was no prejudice to Dixon by L.A.'s failure to respond because she later testified that the fact that charges were pending against her did not affect her verdict. We granted certiorari to review Dixon's claim that the decision of the Court of Criminal Appeals conflicts with Dobyne and Tomlin.

In Dobyne, this Court explained the standard for granting a new trial based on a juror's failure to answer questions on voir dire truthfully:

“The proper standard for determining whether juror misconduct warrants a new trial, as set out by this Court's precedent, is whether the misconduct might have prejudiced, not whether it actually did prejudice, the defendant. See Ex parte Stewart, 659 So.2d 122 (Ala.1993).... The ‘might-have-been-prejudiced’ standard, of course, casts a ‘lighter’ burden on the defendant than the actual-prejudice standard. See Tomlin v. State, supra, 695 So.2d at 170 ...

“It is true that the parties in a case are entitled to true and honest answers to their questions on voir dire, so that they may exercise their peremptory strikes wisely. ... However, not every failure to respond properly to questions propounded during voir dire ‘automatically entitles [the defendant] to a new trial or reversal of the cause on appeal.’ Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970).... As stated previously, the proper standard to apply in determining whether a party is entitled to a new trial in this circumstance is ‘whether the defendant might have been prejudiced by a veniremember's failure to make a proper response.’ Ex parte Stewart, 659 So.2d at 124. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court's discretion. ...

“ ‘The determination of whether the complaining party was prejudiced by a juror's failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Some of the factors that this Court has approved for using to determine whether there was probable prejudice include: “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.” ’

“ Union Mortgage Co. v. Barlow, 595 So.2d [1335] at 1342–43 [ (Ala.1994) ] ....

“The form of prejudice that would entitle a party to relief for a juror's nondisclosure or falsification in voir dire would be its effect, if any, to cause the party to forgo challenging the juror for cause or exercising a peremptory challenge to strike the juror. Ex parte Ledbetter, 404 So.2d 731 (Ala.1981).... If the party establishes that the juror's disclosure of the truth would have caused the party either to (successfully) challenge the juror for cause or to exercise a peremptory challenge to strike the juror, then the party has made a prima facie showing of prejudice. Id. Such prejudice can be established by the obvious tendency of the true facts to bias the juror, as in Ledbetter, supra , or by direct testimony of trial counsel that the true facts would have prompted a challenge against the juror, as in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992).”

Dobyne, 805 So.2d at 771–73 (footnote omitted; emphasis added).

In Tomlin, a case cited with approval in Dobyne, the Court of Criminal Appeals discussed in detail the application of the might-have-been-prejudiced standard to a juror's failure to answer correctly questions posed on voir dire concerning the juror's ties to law enforcement and the juror's experience as a victim of a crime. That court stated:

“ ‘We start with the basic constitutional premise that every person is entitled to an impartial jury [pursuant to the Sixth Amendment to the United States Constitution].’ Knight v. State, 675 So.2d 487, 493–94 (Ala.Cr.App.1995).... ‘It is fundamental to our system of impartial justice that “ ‘[p]arties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes.’ ” ' State v. Freeman, 605 So.2d 1258, 1259 (Ala.Cr.App.1992) (quoting ...