Dixon v. State, No. CR-06-1916 (Ala. Crim. App. 6/27/2008)
Decision Date | 27 June 2008 |
Docket Number | No. CR-06-1916.,CR-06-1916. |
Parties | Roger Dixon v. State of Alabama |
Court | Alabama Court of Criminal Appeals |
Appeal from Escambia Circuit Court (CC-06-82).
AFFIRMED BY UNPUBLISHED MEMORANDUM.
I respectfully dissent from the majority's unpublished memorandum affirming the circuit court's denial of Roger Dixon's motion for a new trial. One of Dixon's grounds for seeking a new trial was that a juror, L.A., deceived the trial court and the parties by remaining mute when the State asked the following question of the venire:
"Have any of you or a member of your immediate family ever been a criminal defendant in a criminal case in either the district court or circuit court in this county where Mr. Kirkland, Mr. Billy or any of the assistant district attorneys prosecuted the case?"
(R. 36.)
The method by which claims of juror misconduct occurring during voir dire are analyzed is set forth in Tomlin v. State, 695 So. 2d 157 (Ala. Crim. App. 1996).
Tomlin v. State, 695 So. 2d at 169-70.
In applying the "might-have-been-prejudiced standard" the Supreme Court of Alabama has stated:
Ex parte Dobyne, 805 So. 2d 763, 772-73 (Ala. 2001).
Dixon asserted at his hearing on his motion for a new trial that had L.A. truthfully disclosed at the time of voir dire that two charges of harassing communications, a violation of § 13A-11-8(b), Ala. Code 1975, were pending against her in Escambia County, he would have exercised a peremptory challenge to remove her from the jury if, in fact, she were not removed for cause on the basis of a truthful answer that she was currently a criminal defendant in the very county where the instant case was being prosecuted.
L.A. testified at the hearing and asserted that she did not understand that she had been prosecuted because in her conversations with the district attorney of Escambia County, Steve Billy, and the victims, she had the understanding that the victims were not interested in pursuing the case and that it would be continued indefinitely. In reality, after Dixon's trial, L.A. was placed in a pretrial diversion program and, according to testimony elicited at the hearing on Dixon's motion, L.A. was not charged any fees or costs normally associated with placement in the program.
As to the standard of review, I am aware that "
Lane v. State, 708 So. 2d 206, 210 (Ala. Crim. App. 1997).
Here, however, I believe that analyzing the failure of the juror to respond utilizing the five factors set out in Smithson, as quoted in Tomlin, reveals that the trial judge did indeed abuse his discretion when he denied Dixon's motion for a new trial.
Temporal remoteness
L.A. was been arrested on February 27, 2007, for harassing communications pursuant to a complaint signed by her ex-husband. L.A. signed an appearance bond in the amount of $500 that required her to appear in the District Court of Escambia County on April 2, 2007, to defend this charge. (R. 186-190.) On March 26, 2007, L.A. was again arrested for harassing communications pursuant to a complaint signed by her daughter. On that date, L.A. signed a second appearance bond in the amount of $500 that required her to appear in the District Court of Escambia County on May 7, 2007, to defend this charge. (R. 181-85). L.A. testified that on April 3, 2007, Mr. Billy had her criminal cases continued. On April 9, 2007, voir dire was conducted in this case and L.A. was selected as a juror for Dixon's trial. On May 3, 2007, L.A. was placed in a pretrial diversion program without paying fees associated with such placement or court costs or fines. Thus, the matters inquired about had occurred within the six-week period before the voir dire in this case, and, considering the personal impact these cases, brought by her own family members against her, would have engendered, there is no reasonable likelihood that L.A. could have forgotten them.
Ambiguity of the question propounded
The majority places great weight upon the trial judge's grammatical parsing of the question with the implied result being that the question required an answer only if the case against the prospective juror was concluded. The trial judge denied the motion for a new trial in a written order but did not make any findings of fact nor include any discussion of the law.
However, L.A. did not testify that she did not answer this question because she believed the question referred to a past completed prosecution; rather, she testified that she did not answer the question because she did not know that she had been formally charged in a criminal case. Her testimony at the hearing on the motion for new trial was an obvious attempt to explain away her failure to answer. In testifying, she made dubious and inconsistent statements. Although one way to look at the question could be that it referred only to a completed case, L.A. had been a defendant since the day she was arrested and made bond on the first charge. She was subjected to prosecution by the district attorney before and during the period of jury selection in Dixon's case. Although the question was in a sense ambiguous, a conscientious...
To continue reading
Request your trial