Gilliland v. State
| Decision Date | 17 May 1973 |
| Parties | Odell GILLILAND v. The STATE of Alabama. SC 362. |
| Court | Alabama Supreme Court |
Hanson & Allen, Albertville, for appellant.
William J. Baxley, Atty. Gen., and George M. Van Vassel, Jr., Asst. Atty. Gen., for the State of Alabama.
Undercover agent Elverd Gosdin and Lamar Pritchett asked Odell Gilliland whether he had any pills. Gilliland stated:
Thirty minutes later, the duo came to Gilliland's house and bought six pills for $3.00, including five black amphetamine capsules.
Odell Gilliland was tried by jury, convicted of selling amphetamine, and sentenced to three years in the penitentiary. He appealed to the Alabama Court of Criminal Appeals, from whence the cause was transferred to this Court.
There is no dispute as to the facts. Appellant asserts seven purported errors of law: (1) Denial of a motion for change of venue on the grounds of prejudicial pretrial publicity; (2) undue restriction of the examination of prospective jurors; (3) a remark by the court during the trial, 'You haven't shown entrapment anywhere so far'; (4) a variance between indictment and proof as to who bought the drugs; (5) improper comment by the district attorney in closing argument; (6) overruling of a motion for a new trial; and (7) refusal of an instruction that defendant could not be convicted on the uncorroborated testimony of the undercover agent.
A defendant in this State is entitled to have his trial removed to another county, if he cannot have a fair and impartial trial in the county in which the indictment is found. Title 15, § 267, Code of Alabama 1940, Recompiled 1958. Appellant argues that two weeks of newspaper, radio, and television publicity about a 'mass crack-down' on 'pushers' in his area made it imperative that his trial be switched to another county. In support of his contention, he states that two jurors in another case in Marshall County asked to be excused because they could not render a just verdict on marijuana charges.
Our statute provides that this Court's review of the trial court ruling is to be do novo, without any presumption in favor of that ruling. Title 15, § 267, supra. However, the burden was on the defendant to show to the trial court that a fair trial could not be expected. Welch v. State, 28 Ala.App. 273, 183 So. 879 (1938). Let us proceed to examine the matter as if in the shoes of the trial judge.
The policy of our change of venue statute balances the inconvenience and administrative inefficiency of a change with the knowledge that certain crimes so arouse the public in a particular locality that a fair trial there is impossible. A study of the cases reveals that these crimes are invariably of a notorious or spectacular nature, involving violence to the person: specifically, murder and rape. Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971); Thompson v. State, 117 Ala. 67 (1897). Criminal activity in which no one is hurt or killed, while distasteful to the public, does not seem to arouse quite the same passions. An obscure sale of six pills for $3.00, such as we have here, appears to fall safely in the latter category.
Furthermore, it was admitted by defense counsel that none of the publicity about the 'crack-down' on drug offenders related to the defendant; in fact, his name was never mentioned. In light of these factors, we think that defendant did not carry his burden and that the trial court's ruling denying a change of venue was correct. If an adverse public attitude to crime in general were held to mandate a change in venue, the venue would be bouncing around from now until the end of days, because there is an adverse public attitude towards crime in every county in Alabama.
During the selection of the jury one of the attorneys for the defendant, Mr. Allen, began to ask a series of questions of the first of more than fifty prospective jurors. The following dialogue then occurred:
Examination of jurors takes place 'under the direction of the court.' Code, Title 30, § 52. His rulings will not be disturbed unless constituting an abuse of discretion. Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1961).
In light of the large amount of time required to individually examine more than fifty prospective jurors, and the availability of a satisfactory alternative method, that suggested by the judge, we find no abuse of discretion in his ruling in this case. McPhearson v. State, 271 Ala. 533, 125 So.2d 709 (1960).
At trial, over the objection of the State, the court permitted testimony as to other illegal drug activity, on defendant's contention that he could 'show a connection in the defense of entrapment.' In the middle of this testimony, the State objected again:
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