Dixon v. State, No. CR-06-1916 (Ala. Crim. App. 6/27/2008)

Decision Date27 June 2008
Docket NumberNo. CR-06-1916.,CR-06-1916.
PartiesRoger Dixon v. State of Alabama
CourtAlabama Court of Criminal Appeals

Appeal from Escambia Circuit Court (CC-06-82).

BASCHAB, Presiding Judge

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMillan and Shaw, JJ., concur; Welch, J., dissents, with opinion.

WELCH, JUDGE, dissenting.

I respectfully dissent from the majority's unpublished memorandum affirming the circuit court's denial of Roger Dixon's motion for a new trial.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).

"`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), cert. denied, 675 So. 2d 502 (Ala. 1996). `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 Ex parte O'Leary, 438 So. 2d 1372, 1373 (Ala. 1983), quoting in turn Ex parte O'Leary, 417 So. 2d 232, 240 (Ala. 1982)). `Voir dire' is an ancient phrase which literally means `to speak the truth.' W. LaFave & J. Israel, Criminal Procedure § 22.3(a) (2d. ed. 1992). '"Where the party has examined the jurors concerning their qualifications, and they do not answer truly, it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing his right of peremptory challenge."' Ex parte Ledbetter, 404 So. 2d 731, 733 (Ala. 1981) (quoting Leach v. State, 31 Ala.App. 390, 18 So. 2d 285, cert. denied, 245 Ala. 539, 18 So. 2d 289 (1944)). `Failure to enforce the right to elicit from prospective jurors truthful answers to material questions renders hollow the right of peremptory challenge.' Knight v. State, 675 So. 2d at 494 (quoting Mitchell v. State, 458 So. 2d 819, 821 (Fla.Dist.Ct.App. 1984)).

"In addressing the issue whether a defendant was deprived of the right to exercise peremptory strikes based on truthful answers from prospective jurors, the Alabama Supreme Court recently reiterated the test to be `whether the defendant might have been prejudiced by a veniremember's failure to make a proper response.' Ex parte Stewart, 659 So. 2d 122, 124 (Ala. 1993) (emphasis added). This test casts a `light burden' on the defendant. Cf. Ex parte Lasley, 505 So. 2d 1263, 1264 (Ala. 1987) (stated in regard to the test of whether juror misconduct might have influenced the verdict).

"`"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."'

"Johnson v. State, 536 So. 2d 957, 958 (Ala.Cr.App. 1987), cert. denied, 490 U.S. 1046, 109 S.Ct. 1955, 104 L.Ed.2d 424 (1989) (quoting Smithson v. State, 50 Ala. App. 318, 320-21, 278 So. 2d 766 (1973)). See also Campbell v. Williams, 638 So. 2d 804, 813 (Ala. 1994), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994). `Thus, the facts in each case must be considered individually and much will remain in the discretion of the trial judge.' Parish v. State, 480 So. 2d 29, 30 (Ala.Cr.App. 1985)."

Tomlin v. State, 695 So. 2d at 169-70.

In applying the "might-have-been-prejudiced standard" the Supreme Court of Alabama has stated:

"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); Warrick v. State, 460 So. 2d 320 (Ala. Crim. App. 1984); and Leach v. State, 31 Ala. App. 390, 18 So. 2d 285 (1944). 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)."

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 "`[i]t is well settled that "[a] decision on a motion for a new trial rests largely within the discretion of the trial court, and [that] in reviewing such a decision this court will indulge every presumption in favor of the correctness thereof." ... "A trial judge's denial of a motion for new trial will not be disturbed [on appeal] in the absence of a showing of [an] abuse of discretion."' Sistrunk v. State, 630 So. 2d 147, 154 (Ala. Cr. App. 1993) (citing Brownlee v. State, 545 So. 2d 151, 164 (Ala. Cr. App. 1988), aff'd, Ex parte Brownlee, 545 So. 2d 166 (Ala. 1989), cert. denied, Brownlee v. Alabama, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989))."

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...

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