Hammond v. State, 3 Div. 444

• Decision Date: 01 March 1977
• Docket Number: 3 Div. 444
• Citation: 354 So.2d 280
• Parties: Kenneth HAMMOND, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 280

354 So.2d 280

Kenneth HAMMOND, alias v. STATE.

3 Div. 444.

Court of Criminal Appeals of Alabama.

March 1, 1977.

Rehearing Denied March 29, 1977.

Loma B. Beaty, Patrick H. Tate, Fort Payne, Jackson & Sikes, Selma, for appellant.

William J. Baxley, Atty. Gen. and James S. Ward, Edward E. Carnes, Asst. Attys. Gen., for the State.

PER CURIAM.

Appellant was indicted by the Montgomery County Grand Jury on August 8, 1975, on three counts:

(1) Inciting to a felony, bribery;

(2) Inciting to a felony, attempted bribery;

(3) Accepting a bribe.

The State elected to go to the jury on Count I only, and appellant was found guilty thereon and sentenced to three years in the penitentiary.

THE STATE'S CASE

A short synopsis of the evidence against the appellant is here set out in a light most favorable to the State. The appellant was the president of the Alabama Public Service Commission (hereinafter P.S.C.) from January 1973 to December 1975. Rex Moore and John Moore were majority stockholders in Tops Vending Machine Company (hereinafter Tops). During 1973 the Moores approached the appellant in order to solicit his help in securing the vending machine business in a South Central Bell Telephone Company (hereinafter Bell) plant on Adams Street in Montgomery. The Moores testified that the appellant then stated that he would have to receive $10,000.00 for his services. The Moores stated that they could not afford to pay that much.

In November 1974, Rex Moore received a telephone call from Mr. Vernon Lockard, an employee of Bell, about installing vending machines in the Adams Street plant. Rex Moore again met with the appellant at which time Moore said the appellant asked for $5,000.00 for his help in securing the vending machine business. Rex Moore replied that he could not afford to pay that amount. Subsequent to his conversation with the appellant, Rex Moore was informed by Mr. Lockard that Tops would not get the vending machine business at the Adams Street plant, however, in January of 1975, Mr. Lockard allowed Tops to install vending machines in that plant. The commission from the machines went to the Pioneer Club, an employee organization, not to Bell.

Charles Price was a Bell vice president in charge of public relations. Price had frequent contacts with the appellant and other members of the P.S.C. The appellant asked Price to help Tops get its vending machines into the Adams Street plant. Price complied with the appellant's request. In February 1975, subsequent to the installation of the vending machines, Bell filed with the P.S.C. a request for a rate increase of approximately $59 million. The final order concerning the rate increase was entered in September 1975 (after the arrest and indictment of the appellant). After the installation of the vending machines, Rex Moore said the appellant requested that the Moores pay him $300.00 per month for his help in placing the machines. The Moores refused, although they did give the appellant a total of $200.00 which he requested as expense money for two State business trips.

Some months after the machines were installed, the appellant contacted Price to have Tops' machines removed, stating that the Moores were "a bunch of crooks." The appellant said Price would not get what he needed unless the machines were removed. From that Price concluded that the appellant would not look favorably on the Bell request for a rate increase if the machines were not removed. At first Price did nothing, but appellant began to pressure him more and more to have the machines removed from the Bell plant. Price finally went to the Moores and told them to settle their problems with the appellant.

Rex Moore testified that because of incessant demands for money by the appellant and because of pressure from Price to settle with appellant, he informed the Attorney General of the circumstances involved in this case. Agents of the State had Rex Moore call appellant and arrange to meet in a local truck stop restaurant on July 8, 1975. Those agents wired Rex Moore with a transmitter and recorded his conversation with appellant. Based upon Moore's complaint and the recorded conversation, a warrant for appellant's arrest was issued on July 12, 1975, and on August 8, appellant was indicted by the grand jury. The recording was admitted into evidence and played for the jury during the trial.

THE APPELLANT'S CASE

The appellant testified in his own defense. It was his contention that the Moores were the instigators of the whole affair. He said Rex Moore offered him money to help place Tops' machines in the Bell plant. Appellant denied ever asking the Moores for money or accepting money in connection with placing the machines in the Bell plant. He steadfastly denied ever having implied to Price that he should put pressure on the Moores in turn for a Bell rate increase. The appellant argues at length in his brief that the Attorney General prosecuted him solely for political reasons. A number of witnesses testified as to appellant's good character.

I

Since the State elected to go to the jury on Count I only, appellant's contention that one of the other two counts was improperly amended was thereby rendered moot. Only the count upon which appellant was found guilty is subject to appellate review.

A.

Among numerous motions and pleadings, on November 10, 1975, appellant filed a motion to quash the indictment. One ground set out in the motion to quash was that the grand jury which returned the instant indictment, "was not in compliance with the requirements of the laws of the state of Alabama in obtaining the general cross-section of the community . . . ."

The State contends that the Montgomery County Jury Commission, acting under a federal court order, was required to fill the jury box by taking every fifth name from the voting list of Montgomery County. Appellant contends that such a system fails to fully comply with Alabama statutes on establishing jury lists. The testimony did establish that every fifth name was selected from a computer printout of the Montgomery County voters list.

In support of its position, the State cites Higginbotham v. State, 54 Ala.App. 633, 312 So.2d 31 (1975). In Higginbotham, the venire was established pursuant to a federal court order relating to the Lowndes County Jury Commission. There, the federal court required the commission to examine not only the voters list of that county, but also the tax assessor's list and the list compiled by the federal examiners, and make up a comprehensive list therefrom. The testimony in that case showed that the Lowndes County Jury Commission complied with the requirements of the federal court order and in addition thereto used every source of names available to them in Lowndes County in compiling the master list. The testimony showed that everyone twenty-one years and older were included on the list. The commission also evaluated each precinct in the county and talked to persons having knowledge of individuals living in the county for the purpose of removing ineligible persons as jurors according to the jury laws of this state.

In the instant case, the Montgomery County Jury Commission in following the federal court order ignored the state law. In the memorandum opinion issued in Penn et al. v. Eubanks et al., Judge Frank Johnson, Jr., on June 6, 1973, stated, "As for the means of selecting this cross-section, this court commends for the jury commission's consideration the random jury selection plan used in all federal district courts and in many state courts. See Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1865." (Emphasis supplied.) That court's order stated that, "The jury commission shall examine the voting list and make an alphabetical list therefrom . . . ." That order did not go as far as the one issued in Higginbotham in allowing the use of other sources in selecting potential jurors.

Judge Johnson's order and opinion relating thereto, set a minimum standard which the Montgomery County Jury Commission must meet in order to comply with federal constitutional provisions. We do not read his order to mean that the jury commission is to completely ignore the statutory requirements of Alabama law in selecting and qualifying jurors. Alabama law, if administered in good faith, provides a much better cross-section of the community for jury selection than the federal system.

In Higginbotham, supra, the Lowndes County Jury Commission complied with both federal and state standards. In the instant case, the Montgomery County Jury Commission meets only the minimum federal requirements and thus violates the requirements of Title 30, § 21, Code of Alabama 1940 as amended. However, the violation of a statutory requirement in filling the jury roll may not be taken advantage of by a motion to quash. Title 15, § 278 and Title 30, § 46, Code of Alabama 1940. The only exceptions to the prohibitions of these sections is in case of (1) denial of a constitutional right or (2) fraud.

In addition to the motion to quash the indictment, on October 30, 1975, appellant had filed a plea in abatement to the indictment. Ground 3 is as follows:

"That the grand jury which returned the indictment against the defendant was not in compliance with the requirements of the laws of the state of Alabama in obtaining the general cross-section of the community, in that upon the information and belief, the venire from which the grand jury was drawn, was taken by a mere selection of each fifth name on the jury list ¹ of Montgomery County."

We must now determine if the question of fraud was properly presented in the trial court below and whether an erroneous ruling was made thereon by the trial court.

Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970) holds that a system of jury selection which excludes persons who are not registered voters would not substantially comply with statutory requirements that the jury roll contain the names of every...