Flurry v. State

• Decision Date: 25 September 1973
• Docket Number: 5 Div. 68
• Citation: 289 So.2d 632,52 Ala.App. 64
• Parties: Virginia FLURRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 632

289 So.2d 632

52 Ala.App. 64

Virginia FLURRY v. STATE.

5 Div. 68.

Court of Criminal Appeals of Alabama.

Sept. 25, 1973.

Rehearing Denied Jan. 2, 1974.

Russell, Raymon & Russell, Tuskegee, for appellant.

William J. Baxley, Atty. Gen., and Frederick T. Enslen, Jr., Sp. Asst. Atty. Gen., for the State.

ALMON, Judge.

Virginia Flurry was indicted for murder in the first degree by a Tallapoosa County Grand Jury for the East Side of the Tallapoosa River at Dadeville. She was found guilty by a Jury of manslaughter in the first degree, and her punishment was fixed at ten years in the penitentiary.

Donna Kay Flurry, the appellant's stepdaughter, died on April 20, 1970, of massive hemorrhaging of the major blood vessels of the liver due to traumatic injury. The blow which resulted in death was delivered around 3:45 P.M. while Donna Kay was at home with the appellant, Donna Kay's sister Angelia, and her halfbrother and halfsister, Mark and Stephanie Flurry. At the trial on October 8, 1970, Mark was eight years old, Angelia was thirteen, and Stephanie was six. Donna Kay was eleven years old at the time of her death.

The State's theory was that the appellant, not feeling well on the day of the injury, delivered the fatal blow while disciplining Donna Kay. Evidence for the defense tended to show that Angelia kicked Donna Kay in the stomach, thereby causing death.

Donna Kay's body bore extensive superficial injuries, some which were received at or about the time of death (within twenty-four hours of death). The fatal blow, according to the State toxicologist, separated the connective tissue of the liver, ruptured the liver along the line of its two lobes, reptured the major vessels supplying blood to the liver, and damaged tissue behind the liver. There were at least three distinct head wounds and various assorted abrasions, contusions and bruises. According to the toxicologist, the blow immediately caused the victim to go into shock, and death soon resulted from the unchecked internal bleeding.

Appellant's counsel argues in brief that the trial court committed reversible error in several instances and argues twenty-three propositions of law in support thereof. These matters will be treated separately.

I

The appellant made application to the trial court for a change of venue. Tit. 15, § 267, Code of Alabama 1940. This application was denied after a hearing.

The appellant contends that the trial court's ruling on the application to change venue was an abuse of discretion.

While there is no presumption in favor of the trial court's ruling on the application for change of venue, the matter of granting such a change addresses itself to the sound discretion of the trial court. Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565.

On motion for change of venue, the burden is on the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected. Godau v. State, 179 Ala. 27, 60 So. 908; Maund v. State, 254 Ala. 452, 48 So.2d 553.

Of the thirteen witnesses called by the defense at the hearing, nine were either relatives, bondsmen, worked with appellant's husband, or close friends of appellant or her husband. In brief, appellant places much emphasis upon the testimony of six witnesses to the effect that they believed that many persons of Tallapoosa County, if called to serve on the jury venire to try this case, would not give truthful answers to qualifying questions. It was developed on cross-examination of these witnesses that five of the six fit the category above mentioned as either friend or relative of the appellant and her husband.

The mere belief of the party applying, or his witnesses, that a fair trial cannot be had is not enough to sustain an application for a change of venue. Lee v. State, 246 Ala. 343, 20 So.2d 471. Facts and circumstances rendering a fair trial improbable must be made to appear. Haynes v. State, 40 Ala.App. 106, 109 So.2d 738.

The evidence tended to show that there was widespread feeling at the time of the incident on April 20, 1970, and at the preliminary hearing on June 10, 1970, however, the trial was held on October 8--10, 1970, and cross-examination of the various witnesses revealed that feeling had calmed considerably by trial date. It is understandable that a charge of this nature, a capital case involving child abuse, would naturally cause widespread feeling. Yet such a situation does not force the conclusion that a fair trial cannot be had.

In Maund v. State, supra, the court, in deciding that the defendant had failed to meet the burden of proof for a change of venue, observed as follows:

'The most that can be said of defendant's evidence in support of his application for a change of venue is that it revealed public indignation at the atrocity of the crime immediately after its commission; general discussion of the guilt or innocence of the defendant; statements by one or two persons that the defendant deserved the death penalty; rumors of similar statements by others not identified; rumor to the effect that defendant might be mobbed or lynched; the opinion of affiants that defendant could not get a fair trial and an unbiased verdict in Coffee County. These affidavits and statements by witnesses were, in substance, flatly contradicted by the affidavits of many other citizens of Coffee County. There is no evidence of any demonstration or the formation of a mob to take the law in its own hand, and there could not have existed any racial prejudice against defendant.'

According to the evidence, the appellant was at large on bond pending trial. During this entire time, there was only one actual display of animosity toward the appellant, and this occurred at Donna Kay's funeral and involved a relative of the deceased.

There was no evidence whatsoever of any prejudicial news media coverage.

Although appellant's able counsel were very diligent and presented their case admirably, we are of the opinion that an abuse of discretion was not shown.

II

The appellant argues that the trial court committed reversible error in not allowing the jury venire to be examined on voir dire in groups of twelve. The court required defense counsel to address qualifying questions to the entire panel. Appellant further argues that the denial of this request caused the jury panel to sit quietly, giving neither affirmative nor negative answers to the following questions:

'Q I'll repeat the question. Did the discussions that any of you might have had cause you to form an opinion as to the defendant, Virginia Flurry's, guilt or innocence?

'(No answer.)

'Q Have you heard anything about this case that would prevent you from reaching a verdict based solely upon the evidence given by the witnesses?

'MR. GULLAGE: I'd like the record to reflect that on the previous question there were no hands raised.

'Q Would you return a verdict as to this defendant of not guilty if you thought there was a probability of the defendant, Virginia Flurry, being not guilty? Would you return a verdict of not guilty if you thought there was a probability of the defendant being guilty?

'Q Can each one of you enter the trial of this case with the assumption that Virginia Flurry is innocent? Is there any one of you who cannot enter upon the trial of this case with the assumption that Virginia Flurry is innocent?

'(No answer.)

'Q Are you related to any of the witnesses in this case? You heard their names called earlier today.

'(No answer.)

'MR. DILLON: May it please the Court. I want the record to reflect that I asked the following questions of the jury: Have you heard anything about this case that would prevent you--' Excuse me, that's not the question. 'Would you return a verdict of 'not guilty' if you thought that there was a probability of the defendant, Virginia Flurry, being not guilty?' And let the record further reflect that the Court, that is the question sustained the objection.

'MR. HOLLINGSWORTH: I beg your pardon. There was no objection to that question.

'MR. DILLON: No objection? All right, sir. Then I want the record to reflect that there was not one single positive answer to that question by the jury panel. And we, therefore, would move to strike the entire jury panel for cause.'

Requiring defense counsel to qualify a capital venire as a group does not constitute reversible error. Bowen v. State, 8 Ala.App. 103, 62 So. 1022, quoted and followed in Ward v. State, 44 Ala.App. 229, 206 So.2d 897.

Appellant relies on Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247; and Wallis v. State, 38 Ala.App. 359, 84 So.2d 788, for the proposition that the failure of the venire to respond to questions requires a reversal. Both cases may be distinguished on the fact that the defendant demonstrated injury and substantial prejudice at the hearing on his motion for a new trial. It was not the failure to answer per se that was condemned; rather, the failure to answer when there was a duty to speak. In Sanders, defense counsel asked whether the jurors or any member of their families had brought suit for personal injury or property damage arising out of an accident. On motion for new trial, the defense showed that three jurors who had not responded to the voir dire question had been involved in damage or personal injury suits, one as a plaintiff, one as representative for his minor son and on his own behalf for loss of services, and a third had a daughter who had recovered $500.00 and still suffered from injuries. Bloodworth, J., wrote:

'We agree with defendant's contention that parties have a right to have questions answered Truthfully to enable them to exercise their discretion wisely in the use of their peremptory strikes. Section 52, Title 30, Code of Alabama, 1940, as last amended. When jurors fail to answer questions Correctly, a party is denied the exercise of that right. . . .' (Emphasis added.)

In Wallis, supra, veniremen sat silent as...