Ex parte Stewart

• Decision Date: 03 September 1993
• Parties: Ex parte Charles Randall STEWART. (Re Charles Randall Stewart v. State). 1920509.
• Court: Alabama Supreme Court

Page 122

659 So.2d 122

Ex parte Charles Randall STEWART (Re Charles Randall Stewart v. State).

1920509.

Supreme Court of Alabama.

Sept. 3, 1993.

Rehearing Denied Oct. 15, 1993.

Michael P. O'Connor, Montgomery, and George R. Giddens, Anniston, for petitioner.

James H. Evans, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for respondent.

PER CURIAM.

Charles Randall Stewart was convicted by a Talladega County jury of capital murder and was sentenced to death. The Court of Criminal Appeals initially remanded the cause to the trial court for further proceedings on two issues, but found no error as to the other issues raised. Stewart v. State, 601 So.2d 491 (Ala.Cr.App.1992). On return to remand, the Court of Criminal Appeals found no error in the trial court's resolution of the two issues that were the subject of the remand. The Court of Criminal Appeals proceeded to address the propriety of the conviction of capital murder and the sentence of death. That court affirmed Stewart's conviction and sentence. Stewart v. State, 659 So.2d 120 (Ala.Cr.App.1992). Stewart filed a petition for a writ of certiorari, and it was granted as a matter of right pursuant to Rule 39(c), Ala.R.App.P.

All of the issues raised in Stewart's petition and brief were addressed by the Court of Criminal Appeals, with either a full discussion or a summary statement that no error was presented. ¹ As to the issues affecting the entire trial or only the guilt phase, we see no error.

One issue merits some clarification. A particular veniremember mentioned that his wife was on the grand jury then serving, but the district attorney stated, erroneously, that Stewart had been indicted by the prior grand jury. Stewart argues that, if he had known that the veniremember's wife had served on the grand jury that had indicted him, he would have exercised a peremptory strike to prevent that veniremember from sitting on the petit jury. The Court of Criminal Appeals remanded for further inquiry into this issue and, in its opinion on return to remand, stated:

"We further remanded this case for the trial court to determine whether the wife of one of the jurors had served on the grand jury that indicted the appellant. After a hearing, the trial court found that a juror's wife did sit on the grand jury that indicted the appellant, but that the juror did not have any knowledge of the facts surrounding the case and was not told anything about the case from his wife. There was nothing presented at the hearing to show that the juror's impartiality was affected in any way. The court's findings are supported by the record of the hearing.

"Because there is no statutory reason for striking this juror, an 'absolute bias' on the part of the juror must be shown. Jenkins v. State, 627 So.2d 1034 (Ala.Cr.App.1992). No absolute bias was established here."

The Court of Criminal Appeals has used the term "absolute bias" as the test for a challenge for cause when there is no statutory ground for such a challenge. Jenkins v. State, 627 So.2d 1034 (Ala.Crim.App.1992), affirmed, 627 So.2d 1054 (Ala.1993); Nettles v. State, 435 So.2d 146 (Ala.Cr.App.), affirmed, 435 So.2d 151 (Ala.1983). In neither case did this Court repeat the "absolute bias" language, and we express no opinion here as to whether that is the correct test, because Stewart does not argue that the fact that the veniremember's wife served on the grand jury was grounds for a challenge for cause.

Instead, Stewart argues that he was deprived of his right to exercise his peremptory strikes based on truthful answers from prospective jurors, citing Clark v. State, 551 So.2d 1091 (Ala.1989); Ex parte O'Leary, 417 So.2d 232 (Ala.1982), cert. denied, 463 U.S. 1206, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983); and State v. Gilbert, 568 So.2d 876 (Ala.Cr.App.1990). ² The test applied in these cases is whether the defendant might have been prejudiced by a veniremember's failure to make a proper response.

Here, however, the juror was perfectly forthcoming as to his wife's service on the grand jury. The following is the entire exchange at voir dire:

"JUROR: I would like to bring out one thing; I don't know if it matters or not. My wife has been on grand jury ever since September. She's been on the grand jury.

"MR. RUMSEY [district attorney]: That's right. She is on the grand jury that is currently in session.

"JUROR: I just wanted to bring that out.

"MR. RUMSEY: The grand jury that returned this indictment, Judge, I believe is a previous grand jury. I believe it's the March or April grand jury.

"MR. GIDDENS [defense attorney]: This is just a new grand jury that's been empaneled; is that right?

"JUROR: I don't know. She don't tell me.

"MR. RUMSEY: She has not discussed anything about this case or any case?

"JUROR: No, sir."

At the hearing on remand, the juror testified that he had mentioned to the jury that his wife had been on the grand jury that indicted Stewart, but he also testified that she had not told him anything about the case. Stewart focuses his argument on the district attorney's misstatement that the indictment had been returned by a prior grand jury. There is no evidence that the district attorney knowingly misstated this fact, and he testified at the remand hearing that he simply thought Stewart's indictment had been returned earlier than it had. ³ Stewart argues that the district attorney had a copy of the indictment at his counsel table, but there is no indication that he actually looked at it when he stated that the indictment had been returned by the March or April term of the grand jury. Stewart's attorney certainly also had access to a copy of the indictment. If he had wished to pursue the information volunteered by the juror in order to exercise his peremptory strikes, he could have easily looked at the indictment himself.

There is no indication of any wrongdoing or prejudice on the part of the juror. The trial court held a hearing on remand and found no basis for a holding that Stewart might have been prejudiced by the juror's service on the jury. We see no error, and we decline to reverse on this ground.

We have carefully studied all of the arguments affecting the validity of the conviction and we have found no error. Furthermore, Rule 39(k), Ala.R.App. P., provides as follows:

"In all cases in which the death penalty has been imposed, upon review of the opinion of the Court of Criminal Appeals on certiorari, the Supreme Court may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner."

Accordingly, we have reviewed the record for plain error, and we have found no error affecting Stewart's conviction for capital murder that "has or probably has adversely affected the substantial rights of the petitioner."

However, as to the sentence of death, one of the issues discussed by the Court of Criminal Appeals and presented in Stewart's petition does present reversible error. Stewart argues that the trial court's instructions during the sentencing phase were improper because, he argues, they conveyed to the jury the impression that it could find aggravating circumstances other than those enumerated in Ala.Code 1975, § 13A-5-49. The trial court instructed the jury, in pertinent part, as follows:

"The law of this state provides that the punishment for the capital offense for which you have convicted this defendant is either death by electrocution or life imprisonment without eligibility for parole. The law also provides that which of these two punishments should be imposed upon the defendant depends on whether any aggravating circumstances exist, and if so, whether the aggravating circumstances outweigh the mitigating circumstances.

"An aggravating circumstance is a circumstance specified by law which indicates or tends to indicate that the defendant should be sentenced to death.

"A mitigating circumstance is any circumstance that indicates or tends to indicate that the defendant should be sentenced to life imprisonment without parole instead of death.

"The issue at this sentence hearing then concerns circumstances of aggravation and circumstances of mitigation, and you can consider and weigh against each other in deciding what the proper punishment is to be. In making your recommendations concerning what the punishment should be, you must determine whether any aggravating circumstances exist, and if so, you must determine whether any mitigating circumstance or circumstances exist. In making your determination concerning the existence of aggravating and mitigating circumstances, you should consider the evidence presented at this sentencing hearing we have just had. You also may consider any evidence that was presented during the guilt phase, that's the trial stage we have gone through, of the trial that is relevant to the existence of any aggravating or mitigating circumstances.

"The law of the state provides a list of aggravating circumstances which may be considered by a jury in recommending punishment, if the jury is convinced beyond a reasonable doubt and to a moral certainty from the evidence that one or more or any of such aggravating circumstances exist in this case. The same definition that I gave you concerning reasonable doubt applies in this matter. If the jury is not convinced beyond a reasonable doubt based upon the evidence that one or more of such aggravating circumstances exist, then the jury must recommend that the defendant's punishment be life imprisonment without parole regardless of whether there are any mitigating circumstances in this case.

"Now, the law provides a list of aggravating circumstances, and the list has eight statutory aggravating circumstances. And there has been argued to you...