Ex Parte Malone

• Citation: 12 So.3d 60
• Decision Date: 19 December 2008
• Docket Number: 1061424.
• Parties: Ex parte Roger Tavares MALONE, Jr. (In re Roger Tavares Malone, Jr. v. State of Alabama).
• Court: Alabama Supreme Court

12 So.3d 60

Ex parte Roger Tavares MALONE, Jr. (In re Roger Tavares Malone, Jr. v. State of Alabama).

1061424.

Supreme Court of Alabama.

December 19, 2008.

David S. Luker of David S. Luker, PC & Associates, Birmingham, for petitioner.

Troy King, atty. gen., and Stephanie N. Morman and John J. Davis, asst. attys. gen., for respondent.

SEE, Justice.

Robert Tavares Malone, Jr., seeks a reversal of the decision of the Court of Criminal Appeals affirming, by unpublished memorandum, his conviction in the Jefferson Circuit Court for manslaughter. Malone v. State (No. CR-05-1806, May 18, 2007), 9 So.3d 578 (Ala.Crim.App.2007) (table). We affirm.

Facts and Procedural History

On the night of December 30, 2004, Malone got into an argument with Searcy Owens at a pool hall in Ensley. The argument escalated. Owens hit Malone with at least one pool cue and then grabbed Malone. Malone pulled a gun from his pocket and shot Owens five times in the abdomen; Owens later died from his wounds. Malone was indicted and tried for murder.

At the conclusion of the testimony of the first witness, the trial court informed the State and Malone that it intended to allow jurors to question the witnesses directly. Malone objected, but the trial court overruled Malone's objection. The trial court subsequently issued instructions to the jurors:

"All right, ladies and gentlemen, I will allow you to ask the witness a question. If you have a burning question in your mind as a result of the testimony, if the question is improper then I can't let you ask the question. If you ask a question, you receive the answer. You simply receive it.

"In other words, it would be improper to say, `I believe you or I don't believe you,' that sort of thing, okay? Okay."

Malone's brief at 4-5. Thereafter, as each witness finished testifying, the trial court asked the jurors if they wanted to ask that witness any questions. The jurors asked their questions directly, without first submitting them to the trial court. Jurors asked a total of eight questions of five witnesses. Malone did not object to any specific question, but he objected generally to the trial court's soliciting questions from the jurors. Malone himself testified. At the conclusion of his testimony there were no juror questions, and Malone rested his case. The trial court then excused the jury for the evening. After the jury had left the courtroom, the bailiff informed the judge that one of the jurors had a question for Malone. Malone renewed his earlier objection, and the trial court again overruled it. The judge brought the jury back into the courtroom and allowed the juror to ask Malone a question.

The jury convicted Malone of the lesser-included offense of manslaughter, and the trial court sentenced Malone to 20 years' imprisonment. The Court of Criminal Appeals affirmed Malone's conviction in an unpublished memorandum. Malone v. State (No. CR-05-1806, May 18, 2007), 9 So.3d 578 (Ala.Crim.App.2007) (table). This Court granted certiorari review to address, as a question of first impression, whether a trial court has discretion to invite the jury to ask questions of witnesses in a criminal trial.

Issue

The first issue Malone presents is whether the trial court exceeded its discretion by soliciting jurors to question witnesses directly during a criminal trial. The second issue is whether the trial court exceeded its discretion by allowing a juror to question Malone after he and the State had rested their cases.

Standard of Review

Malone objected to the trial court's practice of soliciting juror questions of witnesses; he did not, however, object to the content or form of any specific question. Trial judges are vested with broad discretion in determining courtroom procedure "as long as the exercise of that discretion does not result in the denial of the defendant's basic constitutional right." Hyde v. State, 778 So.2d 199, 236 (Ala. Crim.App.1998); see also Ephraim v. State, 627 So.2d 1102, 1105 (Ala.Crim.App. 1993).

"`A court exceeds its discretion when its ruling is based on an erroneous conclusion of law or when it has acted arbitrarily without employing conscientious judgment, has exceeded the bounds of reason in view of all circumstances, or has so far ignored recognized principles of law or practice as to cause substantial injustice. Hale v. Larry Latham Auctioneers, Inc., 607 So.2d 154, 155 (Ala. 1992); Dowdy v. Gilbert Eng'g Co., 372 So.2d 11, 13 (Ala.1979).'"

Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of Alabama, 991 So.2d 701, 705 (Ala.2008) (quoting Edwards

v. Allied Home Mortgage Capital Corp., 962 So.2d 194, 213 (Ala.2007)).

Analysis

I.

Malone first argues that the trial court exceeded its discretion by "actively soliciting questions from the jurors at the conclusion of each witnesses' [sic] testimony." Malone's brief at 19. Malone concedes that there would be times when it would be proper for a court to allow occasional questions by the jurors. We granted certiorari review, however, to determine whether a trial court may actively solicit questions from jurors, which is a material question of first impression before this Court.

Prather v. Nashville Bridge, 286 Ala. 3, 236 So.2d 322 (1970), is the only published case from an Alabama court that has presented the question whether jurors may directly question witnesses. This Court did not, however, reach the merits of that question in Prather because the issue was not properly preserved for appeal.

A substantial number of state courts in other jurisdictions have considered the issue whether jurors may question witnesses. They have overwhelmingly held that the practice is not error per se.¹ Moreover, "every [federal] circuit to consider the practice has permitted it, holding that the decision to allow juror questioning rests within the discretion of the trial judge." United States v. Richardson, 233 F.3d 1285, 1289 (11th Cir.2000).² "Allowing jurors to ask witnesses questions is `neither radical nor a recent innovation.' State v. Doleszny, 176 Vt. 203, [211,] 844 A.2d 773, [780] (2004). It is a practice with `deeply entrenched' roots in the common law. United States v. Bush, 47 F.3d 511, 515 (2nd Cir.1995)." Medina v. People, 114 P.3d 845, 851 (Colo.2005). "American courts have long sanctioned the practice." United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995).

The jury's role in a trial is to "`"assure a fair and equitable resolution of factual issues."'" Richardson, 233 F.3d at 1289 (quoting Standard Oil Co. of California v. Arizona, 738 F.2d 1021, 1031 (9th Cir.1984), quoting in turn Colgrove v Battin, 413 U.S. 149, 157, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973)). Allowing jurors to question witnesses can "serve to advance the search for truth by alleviating uncertainties in the jurors' minds, clearing up confusion, or alerting the attorneys to points that bear further elaboration." United States v. Sutton, 970 F.2d 1001, 1005 n. 3 (1st Cir.1992). Juror questioning can also lead to "more attentive jurors and thereby leads to a more informed verdict." Richardson, 233 F.3d at 1290 (citing Larry Heuer & Steven Penrod, Increasing Juror Participation in Trials: A Field Experiment with Jury Notetaking and Question Asking, 12 Law and Hum. Behav. 231, 233-34 (1988)). Proper communication is necessary for a jury to correctly fulfill its factfinding duty and "there is reason to believe that permitting receivers of information, e.g., jurors, to ask questions enhances not only their ability to understand what is being communicated, but results in their putting forth more effort to listen and to understand because they know they may ask questions." Yeager v. Greene, 502 A.2d 980, 999-1000 (D.C.1985).

Against this consensus, a few states, including Mississippi and Georgia, have forbidden the practice in criminal trials.³ As reasons for rejecting the practice, those courts cite the jurors' lack of familiarity with the rules of evidence, the risk of counsel's offending jurors by objecting to their questions, a loss of juror objectivity, the potential creation of antagonism between a juror and a witness, and the potential of disruption to courtroom decorum. Wharton v. State, 734 So.2d 985 (Miss. 1998).

One of the concerns expressed by those jurisdictions that do not allow juror questioning is that allowing jurors to directly question witnesses will "redefine[] their role and transform[] them from `fair and impartial' to active participants in the trial." Wharton, 734 So.2d at 988. The Nebraska Supreme Court was concerned that allowing jurors to ask questions would result in "a change in [the jury] system whereby jurors become advocates and possible antagonists of the witnesses." State v. Zima, 237 Neb. 952, 956, 468 N.W.2d 377, 380 (1991). Even courts that allow jurors to ask questions of witnesses note that "[i]t is difficult for jurors to be both active participants in the adversarial process, embroiled in the questioning of witnesses, and detached observers, passing on the credibility of the witnesses and the plausibility of the facts presented." Bush, 47 F.3d at 515. In order to guard against this possibility, most courts that allow juror questioning of witnesses require certain safeguards, such as the submission of written questions for review by the trial judge and an opportunity for counsel to object to the question out of the presence of the jury. See Richardson, 233 F.3d at 1290-91; Bush, 47 F.3d at 511; and Sutton, 970 F.2d at 1005-06.

We agree with the majority position that allowing jurors to question witnesses is not error per se on the part of the trial court. For the same reasons the aforementioned jurisdictions have upheld the practice, we hold that it is within the discretion of the trial court to allow jurors to question a witness.

Malone argues that the trial court here erred when it went beyond merely allowing jurors to ask questions of the witnesses and actively solicited questions from the jurors....