Henry v. State, 1 Div. 530

• Decision Date: 23 August 1988
• Docket Number: 1 Div. 530
• Citation: 548 So.2d 570
• Parties: Michael Gerod HENRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 570

548 So.2d 570

Michael Gerod HENRY v. STATE.

1 Div. 530.

Court of Criminal Appeals of Alabama.

Aug. 23, 1988.

Rehearing Denied April 28, 1989.

Certiorari Denied July 14, 1989

Alabama Supreme Court 88-1007.

Peter Palughi, Mobile, for appellant.

Don Siegelman, Atty. Gen., and J. Randall McNeill, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of murder, in violation of § 13A-6-2, Code of Alabama (1975), and was sentenced to 20 years' imprisonment. Although the appellant has raised four issues on appeal, because one requires a reversal, the remaining issues will not be discussed.

Following the trial, the appellant made a motion for a new trial, arguing that he did not receive a fair and impartial trial because the jury was told, outside the presence of the appellant or his attorney, that they had to reach a unanimous verdict before they could leave the jury room. The appellant attached two sworn affidavits from members of the jury. One of the affidavits states as follows (in pertinent part):

"After hearing all of the evidence in the trial and the judge's charges, I was under the mistaken opinion that I had to agree with other members of the jury to bring back a guilty verdict of murder against Michael Henry. I was not convinced beyond a reasonable doubt that Michael Henry was guilty of murder nor were other members of the jury. I went along with the other members of the jury only because I was under the opinion that we would not be allowed to leave the jury room unless a unamimous verdict was reached....

"When several of us did not want to go along with the murder verdict, one of the jurors knocked on the door and asked if we had to have a unanimous verdict, we were told we had to reach a unanimous verdict.

"I approached Mr. Marsal, Michael Henry's attorney, immediately after the trial to voice my disapproval of what had happened and to let him know about my confusion over the verdict. Had I been aware of the fact that I could have caused a mistrial by not going along with the other members of the jury I would have; however I did not know what a mistrial was and once again I thought that before we could leave the room a verdict had to be unanimous."

The other affidavit substantiated the mistaken belief and the allegation that if the jurors had known that they did not have to reach a unanimous verdict, and a mistrial could have been declared, the jury member would not have voted to find the appellant guilty of murder.

A brief hearing on the motion for new trial was held in which defense counsel claimed that it was improper and highly prejudicial for the members of the jury to be so charged outside the presence of the parties. The prosecutor based his argument on the general rule that evidence of what a juror thought or the reason behind his agreement to a verdict may not be used to impeach the jury's finding. He further argued that, based on Atwell v. State, 354 So.2d 30 (Ala.Cr.App.1977), cert. denied, 354 So.2d 39 (Ala.1978), a juror's affidavit cannot be received as evidence to impeach a jury's verdict. The trial judge stated that, although he had not reviewed the record, he usually informed the jury that in order to convict a defendant, all twelve jury members had to be convinced of his guilt beyond a reasonable doubt and that, if they were unable to so find, twelve more people would be chosen on another date, with the same witnesses, court reporter, and lawyers "and do this thing over, and get twelve other people to do what you didn't do." The court further stated that if the members of the jury did not understand that concept, it was not the court's fault. He also asserted that under the evidence it was clear that the appellant was guilty.

Reversible error is committed where additional instructions are given to the jury out of the presence and hearing of the defendant. Montgomery v. State, 42 Ala.App. 345, 164 So.2d 717 (1964). " '[T]he continuous presence of the defendant from arraignment to sentence is an essential part of the process provided for the trial of the defendant and without which the court has no jurisdiction to pronounce judgment against him.' Neal v. State, 257 Ala. 496, 497, 59 So.2d 797, 798 (1952). See also Thomas v. State, 399 So.2d 915, 923 (Ala.Cr.App.1981); Graves v. State, 377 So.2d 1129 (Ala.Cr.App.), cert. denied, 377 So.2d 1130 (Ala.1979)." Donahoo v. State, 505 So.2d 1067, 1075 (Ala.Cr.App.1986).

" 'To secure to one accused of crime a fair and impartial trial, general rules as to the policy of the law are: (1) To keep the jury in a criminal case entirely separated from the world, permitting no outside communication with them from the beginning of the trial until the verdict is rendered, and that nothing shall occur outside the trial which shall disturb their minds, leaving the jury entirely occupied with a consideration of the case which they are sworn to try (Shaw v. State, 83 Ga. 92, 9 S.E. 768; 134 Am.St.Rep. 1040, note); .... (4) that all courts are agreed that no communication whatever ought to take place between the judge and the jury after the cause has been committed to them, unless in open court, and, if practicable, in the presence of counsel in the cause (Johnson v. State, 100 Ala. 55, 14 So. 627; Cooper v. State, 79 Ala. 54; McNeil v. State, 47 Ala. 498; Rafferty v People, 72 Ill. 37; State v. Rowell, 75 S.C. 494, 56 S.E. 23), and no improper communication be had between jurors and court officers while deliberating and trying to reach a verdict (134 Am.St.Rep. 1047); ....' Leith v. State, 206 Ala. 439, 443, 444, 90 So. 687, 691."

Brickley v. State, 286 Ala. 546, 243 So.2d 502, 505 (1970).

Furthermore, while the jurors' affidavits were inadmissible to show the nature of deliberations or how their deliberations were influenced by any outside factors, Law v. State, 407 So.2d 572, 574 (Ala.Cr.App.1981), they are competent evidence of any extraneous facts which occurred during their deliberations and may have influenced their verdict.

"The affidavit of a juror may ... be allowed to show extraneous facts which may have influenced their verdict. Clay v. City Council of Montgomery, [102 Ala. 297, 14 So. 646]; Ala. F. & I. Co. v. Rice, [187 Ala. 458, 65 So. 402]; McCormick v. Badham, [204 Ala. 2, 85 So. 401]." Taylor v. State, 18 Ala.App. 466, 93 So. 78 (Ala.App.1922). See also Richardson v. State, 439 So.2d 756 (Ala.Cr.App.1983). Thus in Taylor, supra, the defense sought to introduce, through the testimony of three jurors, evidence that the sheriff told the jury members while they were considering the case that: " 'the judge would not permit the jury to make a mistrial in this case;' 'there was a large bunch of good citizens here and around the courthouse, who are waiting to see whether they would convict the defendant or not;' 'that the judge of this court would not be satisfied unless the jury convicted the defendant.' " Id., 18 Ala.App. at 466, 93 So. at 78. The court held that the appellant's motion for a new trial, based on the sheriff's conduct, should have been granted in that it might have affected the jury's verdict. The court...