Giles v. State

• Citation: 554 So.2d 1073
• Decision Date: 10 January 1984
• Docket Number: 6 Div. 86
• Parties: Arthur Lee GILES, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1073

554 So.2d 1073

Arthur Lee GILES, alias v. STATE.

6 Div. 86.

Court of Criminal Appeals of Alabama.

Jan. 10, 1984.

On Return to Remand Jan. 22, 1985.

Rehearing Denied Dec. 9, 1986.

Dennis N. Balske and John L. Carroll, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison and Edward Carnes, Asst. Attys. Gen., for appellee.

HARRIS, Judge.

In his first trial, Arthur Lee Giles, the appellant herein, was indicted for and convicted of the double murder of Willene and Carl Nelson, pursuant to § 13-11-2(a)(10), Code of Alabama 1975, and sentenced to death by electrocution. His conviction and sentence were overturned, however, and he was granted a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Beck v. State, 396 So.2d 645 (Ala.1980). Giles v. State, 405 So.2d 50 (Ala.Cr.App.1981). His second trial, conducted in compliance with Beck v. State, 396 So.2d 645 (Ala.1980), also resulted in a conviction for capital murder and a sentence of death by electrocution. This appeal is from the second capital murder trial of this appellant.

Most of the gruesome details surrounding the double murder of Carl and Willene Nelson are sufficiently stated in Giles v. State, 440 So.2d 1237 (Ala.Cr.App.1983), and Jones v. State, 520 So.2d 543 (Ala.Cr.App.1984), two recent opinions involving offenses arising out of the same series of events as the instant offense. Only a brief summary of those details and additional facts pertinent to the instant appeal need be stated herein.

The appellant and his accomplice, Aaron Jones, traveled to the home of Willene and Carl Nelson in the early morning hours of November 10, 1978, with the intention of robbing the Nelsons. While at the Nelsons' home, the appellant and Jones, in concert, shot or stabbed all six occupants: Carl and Willene Nelson; their three children, Tony, Brenda and Charlie; and Carl's mother, Annie M. Nelson. When the appellant and Jones left, Carl and Willene Nelson were dead and the other four victims were seriously wounded. It is undisputed that the appellant did all of the shooting, including the shooting of Willene and Carl. In his confession, after admitting the shooting, the appellant explained that all of the victims were alive when he finished shooting. He further explained that Jones entered the room after the shooting was completed and suggested that they stab the victims to eliminate any witnesses and that Jones went to the kitchen and retrieved a butcher knife, with which Jones completed the bloody massacre. ¹ Therefore, the only material factual distinctions between the prosecution's theory and the appellant's theory in defense involve appellant's intent and the question of who actually inflicted the fatal blows to both Willene and Carl Nelson.

The appellant contends, for the record, that the Alabama Supreme Court's "rewrite" of the Alabama death penalty statute in Beck v. State, 396 So.2d 645 (Ala.1980), was an unconstitutional usurpation of the legislature's power, but he concedes, and we agree, that this issue has been decided against him by Clisby v. State, 456 So.2d 86 (Ala.Cr.App.1982), affirmed in part, reversed in part and remanded on other grounds, 456 So.2d 95 (Ala.1983), and its progeny.

Appellant's argument that the trial judge should have recused himself simply because he had sentenced the appellant to death by electrocution at appellant's first trial for the instant offense is also without merit. See, Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982), affirmed in part, remanded with directions on other grounds, 482 So.2d 1241 (Ala.1983). Contrary to appellant's argument, the trial judge's findings with regard to mitigating circumstances do not reveal, or even imply, any prejudice against the appellant.

The appellant contends that the trial court erred in denying his motion for a change of venue. We disagree.

In support of his motion the appellant presented the results of an opinion survey With the results of this survey in mind, the trial court deferred ruling on appellant's motion until after voir dire of the prospective jurors at trial. In light of the survey results the trial court permitted a thorough and sifting voir dire of all prospective jurors, including panel interviews and individual voir dire. The results of these voir dire examinations encompass nearly 400 pages of the record on this appeal.

conducted by William M. Kimmelman, a professor with the University of Alabama in Birmingham. Kimmelman testified that a random sample of the 27,000 potential jurors in Blount County, Alabama, was selected for the survey. The results revealed that 85 percent of the 397 potential jurors surveyed had heard about the double murder of Willene and Carl Nelson, either from friends, co-workers, or relatives, or through the news media, but only 17 percent of those interviewed felt that they were "very familiar" with the details and events surrounding the crime. Kimmelman admitted that only 16 percent of those who had heard about the crime had heard something within the 18 months immediately preceding the November 5, 1982, survey. The survey did not reveal any clear, unambiguous evidence of prevailing prejudice against the appellant.

We have thoroughly reviewed the voir dire testimony and have made several conclusions therefrom. Nearly all of the prospective jurors had heard of the widely publicized double murder at the Nelson home, but few remembered any details of the incident. Some of the prospective jurors had read about appellant's first trial and were aware of his previous conviction and a few knew that he had been sentenced to death. One prospective juror indicated that he had a fixed opinion against the appellant, and he was, for that reason, dismissed from the venire. None of the other prospective jurors expressed any prejudice against the appellant, although a few felt that their prior knowledge of the crime might affect their verdicts. The morning after the individual voir dire had been completed, but before the trial court had ruled on the "challenges" of particular prospective jurors, all of the members of the venire indicated that they could lay aside any prior knowledge of the case and return a verdict based upon the evidence presented in court.

The trial court then dismissed a number of prospective jurors "for cause" in response to challenges by either the appellant or the state. In finally denying appellant's change of venue motion, the trial court concluded that those prospective jurors remaining on the venire, after dismissal of those properly challenged, could give the appellant a fair trial.

There was no evidence of any actual prejudice against the appellant among those persons who eventually served on appellant's jury.

The trial court's denial of appellant's change of venue motion was a determination which, absent abuse, was within its sound discretion. Ex parte Magwood (Magwood v. State ), 426 So.2d 929 (Ala.1983), affirming, 426 So.2d 918 (Ala.Cr.App.1982), and cases therein cited; Lopez v. State, 415 So.2d 1204 (Ala.Cr.App.1982). Under the circumstances outlined above there was no abuse of discretion and, therefore, no error by the trial court. See, Magwood v. State, supra; Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978); Moulds v. State, 426 So.2d 942 (Ala.Cr.App.1982).

Appellant's public opinion survey, if accurate, demonstrated that publicity of the instant crime was widespread in Blount County, Alabama, especially during the months immediately following the incident, and that the residents of Blount County were generally aware of the double murder in their county. However, the survey was inconclusive, and did not reveal any inherent or pervasive prejudice against the appellant that mandated a change of venue. See, Callahan v. State, 471 So.2d 447 (Ala.Cr.App.1983), and cases cited therein. To the contrary, the survey revealed that most of the people surveyed remembered little about the crime and, in fact, had heard nothing about it for the eighteen months preceding the survey. Clearly, the passage of time had diminished any prejudicial effects Furthermore, individual voir dire of the prospective jurors at trial revealed that only one member of the venire had a fixed opinion against the appellant. That prospective juror was properly challenged and dismissed. The other members of the venire, although some were also challenged and dismissed, indicated either that they had little or no knowledge of the crime or that they could lay aside any preconceived notions about appellant's guilt and render a verdict based on the evidence presented in court. These circumstances demonstrate compliance with the juror fairness and impartiality standards outlined in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). See, Anderson v. State, supra, and cases therein cited; Moulds v. State, supra. As in Murphy, Anderson, and Moulds, the appellant, herein, has failed to prove that, due to inherent or actual prejudice, he did not receive a fair and impartial trial. The trial court was, therefore, justified in denying his change of venue motion.

                of the widespread publicity. 2  See, Magwood v. State, supra;  see also, Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983), and cases therein cited
                

During the panel voir dire of thirteen prospective jurors, one of the prospective jurors asked the prosecutor whether or not the jury would make the final sentence determination. The prosecutor responded that "there is always appeal and things like that. And the Judge would make a decision after ya'll [the jurors] make the decision." The appellant requested that those thirteen jurors be dismissed from the venire because the prosecutor had impermissibly informed them of the possibility of subsequent review of the jury's sentence verdict. The trial court acknowledged the potential harm, but denied appellant's request in favor...