Gwin v. State

• Decision Date: 23 March 1982
• Docket Number: 7 Div. 895
• Citation: 425 So.2d 500
• Parties: James Edward GWIN, alias Eddie Gwin v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 500

425 So.2d 500

James Edward GWIN, alias Eddie Gwin v. STATE.

7 Div. 895.

Court of Criminal Appeals of Alabama.

March 23, 1982.

Rehearing Denied April 20, 1982.

Loma B. Beaty, Fort Payne, and Terry T. Bush, Rainsville, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

On the 30th of May, 1980, the bullet-ridden bodies of Ralph Little and Donald Ray Faulkner, Jr. were discovered near the Little River Bridge on Highway 35 close to the Cherokee-DeKalb County line. The defendant was indicted and convicted for Little's murder. Alabama Code 1975, Section 13A-6-2 (Amended 1977). Sentence was life imprisonment.

The defendant has raised sixteen separate reasons why his conviction should be reversed. Many of these major arguments contain subdivisions presenting additional grounds for reversal. We have carefully and conscientiously reviewed every issue and argument presented by the defendant. We have written to most but not all. Despite the fervor and vigor with which this appeal is presented, our review convinces us that the defendant received a fair trial with due and proper consideration for his fundamental rights.

I

The defendant argues initially that the trial court erred in refusing to quash the jury venire because of prejudicial pretrial publicity.

At the hearing on this motion, Ms. Virginia Brock, a reporter for The Gadsden Times, was the only witness to testify. A number of newspaper articles were introduced into evidence to support the claim of prejudicial pretrial publicity.

Although some of the articles described the killing of Ralph Little as a "gangland-style slaying", the publicity was well within the confines of what may be termed generally acceptable journalistic reporting. The articles were non-inflammatory and of that class usually appearing in the public press in relation to somewhat sensational events and criminal proceedings thought to be of general interest. The articles expressed no positive opinion as to the guilt or innocence of the defendant. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978). No venireman was called to testify.

"A motion to quash the venire should not be sustained or granted unless it is alleged and proved that the whole venire is tainted with prejudice." Harris v. State, 394 So.2d 96, 98 (Ala.Cr.App.1981); Anno. 76 A.L.R.2d 678 (1961). This rule holds true even where some of the veniremen have been exposed to adverse newspaper publicity. Nickerson v. State, 283 Ala. 387, 217 So.2d 536 (1969).

There is no evidence contained in the record that even a single venireman read the allegedly prejudicial newspaper reports or had any knowledge of the facts of this case. Moreover, juror exposure to news accounts of the crime with which an accused is charged does not alone presumptively deprive the accused of due process of law. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). "Qualified jurors need not, ... be totally ignorant of the facts and issues involved." Murphy, 421 U.S. at 799-800, 95 S.Ct. at 2036.

It is not the mere fact that a person has a personal or fixed opinion as to any of the issues involved in a criminal prosecution which renders that person incompetent to serve as a juror. However, a person is not qualified to serve as a juror where his opinion is so fixed that it would influence his decision so that he could not lay aside his opinion and try the case fairly and impartially according to the law and the evidence. Tidmore v. City of Birmingham, 356 So.2d 231, 234 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.1978).

"To hold that the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

"(T)he burden is on defendant to show to the reasonable satisfaction of the trial court that a fair and impartial trial and an unbiased and unprejudiced verdict cannot reasonably be expected." Nickerson, 283 Ala. at 390, 217 So.2d 536.

Where there is no record before this Court of any testimony taken in support of a defendant's motion to quash, this Court is unable to determine whether the allegations of the motion are true and cannot charge error to the trial judge in overruling the motion. Taylor v. State, 32 Ala.App. 570, 28 So.2d 318 (1947).

As in Nickerson and Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961), "we are left unconvinced, nor was it made apparent to the trial court, that the appellant could not, on account of these newspaper articles, have received a fair trial." Goldin, 271 Ala. at 680, 127 So.2d 375.

II

The defendant contends that the trial judge erred in denying his challenges for cause to eight jurors who allegedly had "a fixed opinion that this does constitute murder." This statement is made by counsel in making the challenge for cause to the trial judge. The proceedings held on voir dire of the jury are not reported and the only "evidence" of counsel's challenge is that which we have just quoted.

Again defendant's allegations of error are not supported by the record. "Statements made by counsel are not evidence." Hale v. State, 355 So.2d 1158, 1159 (Ala.Cr.App.1978).

III

The defendant alleges that the trial judge arbitrarily excused jurors. Again, the record does not support this contention. A trial judge is authorized to excuse veniremen for "undue hardship, extreme inconvenience or public necessity", Alabama Code 1975, Section 12-16-63(b) (Supp.1981), outside the presence of the parties and their counsel. Alabama Code 1975, Section 12-16-74 (Amended 1981). In excusing jurors much is left to the discretion of the trial judge. The record before this Court does not clearly and plainly show any abuse of that discretion.

IV

There is nothing in the record to support the defendant's charge that the State "initiated the prosecution through the media." Also we find no evidence that the State, the trial judge or any of their agents authorized the release of the youthful offender conviction of the defendant. In view of the fact that there is no evidence that any prospective juror read any newspaper article containing such information or any article in which the defendant was accused of the arrest for or conviction of any crime, including the one now under review, the defendant's argument is without merit.

V

It is argued that the circuit court lacked jurisdiction to try the defendant since the defendant was in the process of appealing the circuit court's denial of youthful offender status.

Youthful offenders are covered in Alabama Code 1975, Sections 15-19-1 et seq. Juveniles are covered in 12-15-1 et seq. Rule 28, Alabama Rules of Juvenile Procedure provides for the appeal of any "final order, judgment or decree, including an order transferring a child for criminal prosecution, of the juvenile court." There is no statute or rule authorizing an appeal directly from the order of a circuit court denying a defendant treatment as a youthful offender. Denial of youthful offender status is an issue which may be considered by this Court on appeal of a defendant's conviction.

There is no inherent or inalienable right of appeal in a criminal case. State v. Gautney, 344 So.2d 232 (Ala.Cr.App.1977). The right of appeal is a creature of statute and such statutes are strictly construed. Wood v. City of Birmingham, 380 So.2d 394 (Ala.Cr.App.1980). Generally, appeals lie only from judgments of conviction. Thornton v. State, 390 So.2d 1093 (Ala.Cr.App.), cert. denied, Ex parte Thornton, 390 So.2d 1098 (Ala.1980). Thus there is no direct appeal from a ruling that an accused is not indigent for the purpose of appointing a free lawyer, Locke v. State, 333 So.2d 217 (Ala.Cr.App.1976); or from an order remanding a defendant to custody following the dismissal of the indictment, Ex parte Shirley, 39 Ala.App. 634, 106 So.2d 671, cert. denied, 268 Ala. 696, 106 So.2d 674 (1958); or from an order denying a defendant's motion to withdraw his guilty plea. Dawson v. State, 37 Ala.App. 16, 66 So.2d 567, cert. denied, 259 Ala. 205, 66 So.2d 568 (1953).

Since there is no statute or rule providing for a direct appeal from the denial of an application for treatment as a youthful offender, the defendant had no right to appeal that denial directly to this Court. Consequently, the circuit court was not divested of jurisdiction pending this attempted appeal.

VI

In testifying, State's witness Danny Smith, an Investigator for the District Attorney used a transcript of the defendant's tape recorded statement. The statement itself was neither offered nor introduced into evidence. Although the defendant filed a pretrial motion to produce the tape recording from which the written transcript was made, Smith testified that the tape recording had been erased and reused. Although the defendant alleges fraud and chicanery in the destruction of the tape recording, the record, even when viewed in a light most favorable to the defendant, shows only negligence on the part of the State's investigators in the reuse of the tape.

In view of the fact that the transcript was not introduced into evidence, the holding of Bennefield v. State, 281 Ala. 283, 202 So.2d 55 (1967), is not violated. In Bennefield, the court held that the stenographer who took down the interrogation of the defendant by a detective was the person who should testify as to the authenticity of transcription made from her shorthand notes. Here, Smith interviewed the defendant and tape recorded that interview. Although Smith did not transcribe the tape recording, he testified that he had listened to the tape and read the transcript...