Ervin v. State
| Decision Date | 02 August 1983 |
| Docket Number | 7 Div. 129 |
| Citation | 442 So.2d 123 |
| Parties | Fred D. ERVIN v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
B. Greg Wood, Wood, Hollingsworth & Willis, Talladega, for appellant.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
Fred D. Ervin was indicted for assault in the second degree in violation of § 13A-6-21, Code of Alabama 1975. The jury found the appellant guilty "as charged in the indictment" and the trial judge set sentence at four years' imprisonment in the penitentiary.
I
Prior to trial, defense counsel filed a plea in abatement and a motion to quash based on the fact that the foreman of the Grand Jury that returned the indictment in this cause against this appellant, was a law partner of the assistant district attorney. At the hearing on the plea and the motion, the following occurred:
The trial judge denied the appellant's plea in abatement and motion to quash based on the above. The appellant contends this was error to reversal because the above situation violates §§ 12-16-207, 209, Code of Alabama 1975.
Section 12-16-207, Code of Alabama 1975 provides that a prosecutor shall not "be present at or take any part in the deliberations" of the Grand Jury. Section 12-16-209, Code of Alabama 1975, provides that a district attorney "must not be present at the expression of their [the Grand Jurors'] opinions or the giving of their votes on any matter before them."
The appellant claims these two statutes were violated because the knowledge of the assistant district attorney should have been imputed to his law partner and therefore, vicariously, disqualify him from service on the Grand Jury.
While we do not find that the situation, as set forth above, in this case expressly violates the above cited statutes, or that the law partner was incompetent, as a matter of law, to serve as a grand juror because of a pre-conceived bias or prejudice, we do believe any possibility of a conflict of interest should be avoided in this case. See Sheppard v. State, 243 Ala. 498, 10 So.2d 822 (1942).
In order to avoid any claim of impropriety, we are of the opinion that the proper course of action herein is to remand this case with directions to the trial court, so that the trial judge may make a factual determination as to what confidential information, if any, with reference this cause, was exchanged between the law partner and the district attorney or any full or part time member of his staff. If the trial judge finds that the law partner possessed no disqualifying knowledge when the Grand Jury was convened, then he was, in fact, competent to serve as a member of and to be the foreman of the Grand Jury.
As this court stated in Terry v. State, 424 So.2d 710 (Ala.Cr.App.1982):
"We do not wish to be understood as retreating from the high standards of ethical conduct embodied in Canon 9 of the Alabama Code of Professional Responsibility. While we reaffirm the principle that attorneys should avoid even the appearance of impropriety, we agree with the South Dakota Supreme Court, that:
Schmidt v. Pine Lawn Memorial Park, Inc. 198 N.W.2d at 502 [1972] (Quoting United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955)).
Schmidt, supra, 198 N.W.2d at 502, quoting Waters v. Western Co. of North America, 436 F.2d 1072, 1073 (10th Cir.1971)."
Therefore, this cause is remanded to the trial court with directions to make a factual determination as to whether there existed a conflict of interest in this case, as herein noted. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). 1
This cause is remanded to the trial court with directions that the appellant and his counsel be present and a hearing conducted on the issue herein set forth. A transcript of this hearing shall be prepared following this hearing, with the appropriate findings set forth in writing by the trial judge, and such transcript promptly returned to this court.
REMANDED WITH DIRECTIONS.
All the Judges concur.
This cause was remanded to the circuit court for a hearing, to determine whether or not the assistant district attorney whose law partner served as foreman of the Grand Jury which returned the indictment in the instant case had received information prior to his service on the Grand Jury, which might have precluded or prevented such service. The trial court determined that the law partner who served as foreman of the Grand Jury possessed no disqualifying information relative to this case.
The trial court submitted its written findings to this court which reveal the following:
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Smith v. State
...grand juror. 544 So.2d at 991-92. See also, Eddings v. State, 443 So.2d 1308, 1309-10 (Ala.Cr.App.1983), and Ervin v. State, 442 So.2d 123, 124-25 (Ala.Cr.App.1983), in which we held that, absent evidence of a conflict of interest or disqualifying knowledge, the law partners of part-time as......
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Noah v. State
...be foreman of the Grand Jury which indicted a given appellant. See Terry v. State, 424 So.2d 710 (Ala.Crim.App.1982); Ervin v. State, 442 So.2d 123 (Ala.Crim.App.1983); Eddings v. State, 443 So.2d 1308 As herein noted, sheriffs and their deputies are not regulated by such codes of professio......
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Eddings v. State, 7 Div. 132
...filed by defendant denied after hearing. JLF" (s/Jerry L. Fielding). This court on August 2, 1982, in the case of Ervin v. State, 442 So.2d 123 (Ala.Cr.App.1983), has ruled on this very issue involving these same parties. In Ervin we remanded that case to the circuit court with directions t......
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Eddings v. State, 7 Div. 131
...Brown, Asst. Atty. Gen., for appellee. TAYLOR, Judge. This appeal raises the same issues as raised in the case of Ervin v. State, 442 So.2d 123 (Ala.Crim.App.1983) and is controlled by the same principles as set out therein and by the same directions to the trial This case is accordingly re......