Ex parte Pilley
Decision Date | 28 January 2000 |
Citation | 789 So.2d 888 |
Parties | Ex parte Stephen PILLEY. (In re Stephen Pilley v. State). |
Court | Alabama Supreme Court |
Joe W. Morgan, Jr., Birmingham, for petitioner.
Bill Pryor, atty. gen., and Michelle Riley Stephens, asst. atty. gen., for respondent.
Stephen Pilley was convicted of capital murder, based on the murders of five persons committed pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. The jury recommended, by a 12-0 vote, that Pilley be sentenced to death by electrocution. The trial court concurred with that recommendation and sentenced Pilley to death.
The Court of Criminal Appeals affirmed Pilley's conviction and sentence. See Pilley v. State, 789 So.2d 870 (Ala.Crim.App. 1998). This Court granted Pilley's petition for certiorari review, and we now reverse and remand.
The Court of Criminal Appeals stated the following facts:
In his brief, Pilley presents 14 issues for our review; however, we will address only two of them. We conclude that the trial court erred in refusing to declare a mistrial after learning that a deputy district attorney had contacted a juror after the jury had been selected but before the trial had begun; that juror ultimately served as the foreman of the jury that convicted Pilley and recommended the imposition of the death penalty. That error requires a reversal. We also find it appropriate, however, to address Pilley's argument regarding the sufficiency of the evidence, because the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution would bar a retrial if Pilley is correct in arguing that the evidence was insufficient to establish his guilt. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see, also, Ex parte Roberts, 662 So.2d 229 (Ala.1995).
Pilley argues that the trial court erred in denying his motion for a mistrial because of telephone contact between a deputy district attorney and a member of the jury. Alternatively, Pilley argues that the trial court erred in refusing to put an alternate juror in place of the juror who had had the contact with the deputy district attorney.
Before trial, Deputy District Attorney Jeff Wallace ("the prosecutor") received a list containing the names of all the citizens summoned for jury service during the week of Pilley's trial. From that jury venire, 12 regular jurors and 2 alternate jurors were selected to try the State's case against Pilley. After that jury had been selected, Lane Tolbert, who is a deputy district attorney in the prosecutor's office but who did not work on Pilley's case, recognized a name on the jury venire list. He notified the prosecutor that one of the jurors selected in Pilley's case might be a person with whom he attended church. The prosecutor then asked Tolbert to look at the jurors through a window in the door of the courtroom to determine whether the juror was the man he knew from church. Tolbert did not do as the prosecutor asked; instead, Tolbert telephoned the juror's residence and spoke with his wife, whom he apparently also knew from church. According to the record, Tolbert confirmed during this conversation that the juror was indeed the man with whom he attended church. The man had been selected as a regular juror in the Pilley case.
Although the trial court had admonished all jurors that they were to call to the court's attention any contacts they might receive concerning the case, this juror did not follow the court's instruction. Instead, on the following day, the juror telephoned Tolbert and asked him why he had telephoned his wife. Tolbert said that during the ensuing conversation he asked the juror whether their contact would affect his ability to decide the case. After the juror assured Tolbert that he would not be affected by the telephone call, Tolbert said that he advised the juror that he need not disclose their conversation unless he was asked about it. There is no transcript of the conversations between Tolbert and the juror and between Tolbert and the juror's wife; therefore, we cannot state with certainty the entire content of these conversations.
The prosecutor learned of the contact between Tolbert and the juror; the prosecutor learned of it on the second day of the trial, after the jury had been sworn and before the lawyers gave their opening statements. The prosecutor then advised the trial court about the two telephone calls. There is no indication in the record that the prosecutor learned about the telephone calls from the juror. When asked by the trial court what took place in his conversation with the juror, Tolbert stated:
At that point, Pilley moved for a mistrial, but the trial court deferred ruling on Pilley's motion until after the court had talked with the juror.
The record then reflects a colloquy between the juror and the trial court during which the juror told the trial court that his contact with Tolbert would not affect his ability to be an impartial juror. As that colloquy continued, the juror described to the court his unfamiliarity with Tolbert's position:
The trial court then cautioned the juror not to talk to the other jurors about...
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