Donahoo v. State, 7 Div. 977

• Decision Date: 29 September 1989
• Docket Number: 7 Div. 977
• Citation: 552 So.2d 887
• Parties: T.M. DONAHOO, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 887

552 So.2d 887

T.M. DONAHOO, Jr. v. STATE.

7 Div. 977.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

B. Greg Wood of Wood, Hollingsworth & Willis, Talladega, and L. Drew Redden of Redden, Mills & Clark, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, T.M. Donahoo, Jr., was convicted of trafficking in cannabis (marijuana), in violation of § 20-2-80, Code of Alabama 1975. He was sentenced to 20 years' imprisonment and was fined $25,000. This appeal arises out of appellant's second conviction for trafficking in marijuana. Appellant's initial conviction was set aside and a new trial was granted because of "improper jury communication." Donahoo v. State, 505 So.2d 1067 (Ala.Cr.App.1986). Twelve issues are raised on appeal.

The evidence presented by the State tended to establish that on June 27, 1985, Talladega County law enforcement authorities spotted, by means of aerial surveillance, a field of marijuana growing approximately one-half mile from County Road 58. Officers ascertained that the property on which the marijuana was growing was owned by the mother of the appellant, whose land adjoined his. Appellant's residence was located over one-half mile from the marijuana field and on the opposite side of County Road 58. The marijuana field contained over 2000 plants, all of which were subsequently cut down and confiscated by law enforcement officials. The plants were one and one-half to two months old and were valued at $500 to $600 each.

When the marijuana field was discovered by the authorities, the soil was moist and smooth, despite the fact that the weather has been extremely dry and the surrounding land was dry and dusty. Further investigation revealed that the marijuana field had an extensive sprinkler irrigation system, operated by means of an electric pump located in a nearby lake. This lake also was located on the property of appellant's mother. Electricity was supplied to the irrigation pump from an electric meter registered to the appellant. The electric meter showed little or no usage of electricity by the pump. However, there was no seal on this electric meter. The State's evidence established that if the seal had been broken or removed, it would have been possible to turn the meter over so that it ran backwards. Such an action would have resulted in the apparent consumption of little or no electricity.

The State's evidence further established that the equipment for the irrigation system, as well as peat pots and other supplies necessary for growing marijuana, had been purchased by the appellant.

Following the confiscation of the marijuana plants found in the irrigated field, authorities obtained a search warrant for appellant's barn. During the execution of this warrant, appellant told Talladega County Sheriff Jerry Studdard, "I know who turned my marijuana up, I mean ever whose marijuana that is over there." Later, appellant told the sheriff that he wanted his pump back.

With the exception of 40 plants, all of the marijuana taken from the field was destroyed by law enforcement officials. The remaining 40 plants were taken back to the sheriff's department. After these plants dried out, officials stripped the marijuana leaves from the mature plant stalks, placed the leaves in three large plastic bags, and transported the bags to the Alabama Department of Forensic Sciences for examination. Ron Hubbard of the Department of Forensic Sciences examined the dried leaves taken from the field and positively identified the leaves as marijuana. The total contents of the bags turned over to him weighed 16.8 pounds. The bags contained marijuana stems and leaves, but no stalks. Hubbard initially estimated that the marijuana leaves, exclusive of stems, weighed between 13 and 14 pounds. Additional testimony elicited from Hubbard established that in his expert opinion at least 95% of the 16.8 pounds of plant material given to him for analysis was marijuana. If 95% of the 16.8 pounds of plant material was marijuana, the total weight of the marijuana would then be 15.96 pounds.

I

Appellant first contends that his motion for change of venue should have been granted because, he says, he could not receive a fair and impartial trial in Talladega County, Alabama, due to extensive pre-trial publicity.

The principles controlling this issue are set out in Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985):

"Absent a showing of abuse of discretion, a trial court's ruling on a motion for change of venue will not be overturned. Ex parte Magwood, 426 So.2d 929, 931 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983). In order to grant a motion for change of venue, the defendant must prove that there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Franklin v. State, 424 So.2d 1353 (Ala.Cr.App.1982). Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue. Anderson v. State, 362 So.2d 1296, 1298 (Ala.Crim.App.1978). As the Supreme Court explained in Irvin v Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961):

" 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....'

"The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, [2035-2036,] 44 L.Ed.2d 589 (1975). Thus, '[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.' Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978)."

The appellant, in support of his motion for change of venue, submitted copies of numerous articles which had appeared in the Talladega Daily Home, the local newspaper. All of the articles mentioned the appellant or his case. In many of the articles, appellant's name and the facts of his case were mentioned merely as being on the forthcoming trial docket. Several of the articles, however, concerned appellant's case exclusively. One article concerning appellant's case was an editorial opinion. The appellant contends that the fact that his previous conviction was mentioned in many of the articles as being overturned on "a technical matter" or "a technicality" was so prejudicial as to entitle him to a change of venue.

While it is readily apparent that there was extensive pre-trial publicity concerning appellant's new trial, this fact alone does not necessarily mean that appellant could not receive a fair and impartial trial. Fike v. State, 447 So.2d 850, 857 (Ala.Cr.App.1983).

"Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

"....

"... Generally newspaper articles which objectively report the commission of a crime, do not carry inflammatory headlines, and do not editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice are an insufficient basis on which to grant a motion for change of venue. Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975)."

Anderson v. State, 362 So.2d 1296, 1298-1300 (Ala.Cr.App.1978).

We have reviewed the articles submitted by appellant. Despite the fact that some articles referred to appellant's previous conviction being reversed on a "technicality," all but one of the articles were objective and factual, and were merely articles which detailed the crime and the developments in appellant's case.

The editorial opinion, however, could be considered prejudicial because it contained "sensational, accusational or denunciatory statements" concerning the appellant. McLaren v. State, 353 So.2d 24, 31 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977). The editorial, entitled "Trivia Clogs the Courts," was critical of a justice system which because of "[a] trivial technicality, one which seems, if anything, error without injury, sends [Donahoo's] case back for a new trial." The editorial concluded: "What has happened to common sense in the justice system? With all other charges proved, is such a triviality so important as to cost taxpayers a new trial?"

Although this article was inflammatory, this court cannot say that the publication of this one editorial opinion deemed the pre-trial publicity surrounding this case, as a whole, "inherently suspect." Of the 54 prospective jurors, over 40 had read or heard something about appellant's case. Individual voir dire, however, revealed that only four of the 54 prospective jurors indicated that they would not be able to return a fair and impartial verdict. These jurors were, of course removed from the jury venire. "Considering the answers of each prospective juror on voir dire examination we believe that the jury was impartial and adhered to its sworn duty to base its verdict upon the evidence adduced and the law as expounded by the court's instruction." Anderson, supra, 362 So.2d at 1300. Therefore, the trial court correctly denied appellant's motion for a change of venue.

II

Appellant next contends that the trial court erred in denying his challenge for cause as to prospective juror Jesse H. Simpson.

Section 12-16-150, Code of Alabama 1975, provides that a juror may be challenged for cause if he has a...