Ex parte Speaks
| Citation | 494 So.2d 118 |
| Parties | Ex parte Anthony Dale SPEAKS. (In re Anthony Dale Speaks v. State of Alabama). 84-870. |
| Decision Date | 09 May 1986 |
| Court | Supreme Court of Alabama |
Certiorari to the Court of Criminal Appeals (5 Div. 954).
Prior report: 494 So.2d 112.
Lee Sims and John Percy Oliver, II, Dadeville, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
Certiorari was granted to determine whether a judge may order a severance of jointly indicted defendants immediately before trial because of an insufficient number of jurors, which are required for a joint trial of two defendants, in the absence of a finding of prejudice to a defendant. We answer in the negative and reverse.
The trial court ordered a severance of the cases on the day of trial after it determined that thirty-six prospective jurors were not present, A.R.Cr.P. 15.4(h).
Rule 15.4(c) and (d), which set forth the grounds for severance, provide as follows:
It is clear that a severance is not authorized by the rule in the absence of a finding of prejudice to a defendant.
The trial judge asked counsel for both defendants if they would consent to striking a jury with less than thirty-six jurors. Petitioner's counsel objected and requested a continuance. Counsel further stated that he had prepared the case to be tried jointly and that severance would dramatically change his trial strategy.
We are of the opinion that the rule should have been followed, and we cannot conclude that Petitioner was not prejudiced by the severance order.
The judgment is therefore reversed and the cause remanded.
REVERSED AND REMANDED.
All the Justices concur, except STEAGALL, J., not sitting.
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