Donahoo v. State
| Decision Date | 06 March 1979 |
| Docket Number | 6 Div. 647 |
| Citation | 371 So.2d 75 |
| Parties | Michael E. DONAHOO v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Russell T. McDonald, Jr. and Roger A. Brown, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
Michael E. Donahoo was tried by a jury in Jefferson County, Alabama, on a charge of rape, found guilty and sentenced to life imprisonment. On conviction, appellant immediately gave notice of appeal and filed a motion for new trial. A hearing on the motion was held and the motion was denied.
The sufficiency of the evidence was not raised by a motion to exclude the State's evidence, but was mentioned as grounds for a new trial in appellant's motion for new trial.
Sufficiency of the evidence was not insisted on at the hearing on the motion, and the only issue raised at the hearing, and on appeal, concerns the conduct of the trial court's bailiff after the trial, while the jury was deliberating.
Suffice it is to say that the following recitation of facts is sufficient to support appellant's conviction: The prosecutrix, a waitress at T. P. Crockmire's Restaurant and Lounge, walked to the employee's parking lot at approximately 6:30 P.M. on October 25, 1976, and got into her car. As she was leaving the parking lot, the man she identified as the appellant forced his way into her car by threatening her with a broken drinking glass. The appellant told her that if she "screamed or hollered, or anything he would cut her."
The prosecutrix testified that she and the appellant rode around in her Volkswagen for approximately forty-five minutes and that, during that time, he hit her in the face and told her to perform various sexual acts while he drove. She said that he told her that he "was going to cut me . . . going to kill me."
According to the prosecutrix, while appellant was driving they passed Brookwood Village, drove some two miles further to a dead-end street, and got out of the car. At that time, the appellant told her that "he had problems . . . (and) that he had been accused of rape before." She said that he then hit her again and knocked her against the car and told her take off her clothes. After she had removed all of her clothes, she tried to run away down the road, but the defendant grabbed her by the hair, dragged her back to the car, and had sexual intercourse with her.
She testified that afterwards, the appellant let her put her clothes on.
Appellant then drove to the Woodland Hill Apartments where he took an apron, which was part of her uniform, and wiped the steering wheel, the gear shift and the door. He then got out and walked toward the tennis courts. The prosecutrix stated that she immediately drove across the street to a service station where she called the Birmingham Police Department.
During the trial, she identified the appellant as her assailant and said that she particularly "noticed his buck teeth."
The appellant contends that he was denied a fair trial "by improper communications between the jury and a court officer during the deliberations of the jury." He complained that when the court officer Bailiff Joe D. Newton, was presented with the jury's written question inquiring as to the "minimum times of service for sentences of varying lengths," he presumed to inform the jury, not only that the question could not be answered by the court, but further, that the court " . . . could only answer questions of law, this was a question which came under the Executive Department of the State. . . ."
In support of this contention, the appellant has cited Leith v. State, 206 Ala. 439, 90 So. 687, and Roberts v. State, 26 Ala.App. 331, 159 So. 373, which we find are not directly applicable to the case at bar.
Leith v. State, supra, does not support the appellant's contentions that such communications would deny him a fair trial. That case concerned extrinsic physical material, in the form of an opinion by the trial judge dealing with an application for habeas corpus by the accused, which was inadvertently left in the jury room. This material came to the attention of a few but not all, of the jurors during their deliberations.
In Leith, supra, after considering the affidavits of all the jurors, the court stated that it affirmatively appears that the document did not influence the verdict of the jurors.
In Roberts v. State, supra, the court was primarily concerned with the quotient verdict submitted by the jury. The court stated that, due to the deputy sheriff's refusal to allow the jury to see or question the judge regarding the punishment to be fixed, the conduct of the deputy "may have influenced the jury to have resorted to a quotient verdict."
In the case at bar, there was no refusal by the bailiff to allow the jury to see or question the judge. Instead, there was a communication which, although admittedly improper, did not serve to influence the verdict arrived at by the jury.
Appellant has also cited to us many cases prohibiting any comment by a trial judge, to a jury trying an accused's case, concerning the possibility of parole. In our examination of the transcript, we did not find any evidence that the judge had made any reference to parole.
At the hearing on the motion for new trial, it was shown that, after the jury had retired to deliberate, one member knocked on the door of the jury room and told the bailiff that they had a question. Newton then instructed them "to put it in writing." According to Newton, the jury then knocked on the door again and presented him with the written inquiry, which reads as follows (from the court's Exhibit No. 1, on motion for new trial):
Newton testified that he then stated, in substance:
Newton went on to say that it was his impression that it was the standing instruction of the trial judge, in the past, on the numerous occasions when similar questions had been asked, to give substantially the same answer he had given to this jury.
According to Newton, immediately after the question was handed to him, he took the written question and showed it to the judge. Newton said that the defense attorney and the district attorney were with the judge at the time he informed him (the judge) of what he had said to the jury. Newton testified that the defense attorney did not raise any questions, ask for any instructions, or make any comment in particular about the incident, at that time.
Following the bailiff's testimony, ten jurors were called who had served on the panel in the accused's case. Their testimony reflected that the question had been asked among the jurors before they had submitted it to the judge, but that none of them had known the answer.
Several of the jurors commented that, when the bailiff told them that the judge could not instruct them on the subject, they "did not pay any more attention" to it, "threw it out," and that "it was dropped." One juror stated:
"Our deliberations were that the crime deserved the sentence of life because in the opinion of the jury, anything less than that he wouldn't serve any time at all, that he wouldn't probably serve any time for that crime if it were less than that."
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Thomas v. State
...of appellant and his counsel. Graves v. State, Ala.Cr.App., 377 So.2d 1129, cert. denied, 377 So.2d 1130 (Ala.1979); Donahoo v. State, Ala.Cr.App., 371 So.2d 75. A judge's refusal to communicate with the jury at their request is not improper. Wylie v. State, 24 Ala.App. 187, 132 So. 438. Un......
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Edwards v. State
...of such a communication does not raise the presumption that it improperly prejudiced the jury against the defendant. Donahoo v. State, 371 So.2d 75 (Ala.Cr.App.), cert. denied, 371 So.2d 79 In the instant case, the only communication that occurred between the trial court and the jury was th......
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Donahoo v. State, 7 Div. 578
...after the cause has been submitted to them, unless in open court with all the parties and their attorneys present." Donahoo v. State, 371 So.2d 75, 78-79 (Ala.Cr.App.), cert. denied, 371 So.2d 79 Although there is nothing in the trial transcript here to indicate that improper communication ......
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Daniels v. State
...after the cause has been submitted to them, unless in open Court with all the parties and their attorneys present." Donahoo v. State, 371 So.2d 75, 78-9 (Ala.Cr.App.), cert. denied, Ex parte Donahoo, 371 So.2d 79 There is nothing in the record, apart from the objections and motions of defen......