Holland v. State

• Decision Date: 31 May 1991
• Citation: 588 So.2d 543
• Parties: William Warren HOLLAND v. STATE. CR 89-1042.
• Court: Alabama Court of Criminal Appeals

Page 543

588 So.2d 543

William Warren HOLLAND v. STATE.

CR 89-1042.

Court of Criminal Appeals of Alabama.

May 31, 1991.

Certiorari Denied Oct. 18, 1991

Alabama Supreme Court 1901439.

G. William Gill of McPhillips, Hawthorne & Shinbaum, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., on rehearing, for the State.

ON APPLICATION FOR REHEARING

BOWEN, Judge.

The opinion of this Court issued March 29, 1991, is hereby set aside. The following becomes the opinion of this Court.

William Warren Holland, the appellant in this case, and O'Neal Goodman ¹ were separately indicted for robbery in the first degree. Their cases were consolidated for trial and both men were convicted. Holland was sentenced to life imprisonment without the possibility of parole as a habitual felony offender. In addition, he was fined $20,000 and was ordered to pay $10,000 to the victims' compensation fund.

I

On voir dire of the venire, there was no response to the question of the trial court, "Do any of you have a fixed opinion as to either the guilt or innocence of either of the defendants which would bias your verdict?" Immediately before a lengthy recess, the trial court instructed the venire, "Don't discuss the case in any way." However, during that lengthy recess which occurred prior to the jury's being selected, ² veniremember Ward verbally expressed her opinion that the appellant was guilty. At the hearing on this issue, veniremember Oates testified that while the veniremembers were standing in the hallway of the courthouse, veniremember Ward said that "you can tell by looking at him [Holland] that he is guilty.... And there was some ten to 15 people standing there, and there was a general discussion going on. And a gentleman that was wearing, I believe, gray pants and a pink shirt said, 'Yes. They could save us a lot of money if they would just simply take a vote now and let us vote whether he was guilty or not.' " The hearing on this issue was held after the jury had been selected but before any witness had testified in the appellant's trial. Ward was selected as a member of the jury. The male who responded to Ward's comment was never identified, and there was no determination made whether or not he was a member of the jury.

The trial court denied the appellant's and the codefendant's motion for a mistrial and stated: "I intend to ask each of the jurors if they're able to abide by [my instructions] and to make their decision based only on the evidence in the case."

After disposing of some pretrial motions, the trial court instructed the jury on the burden of proof, the presumption of innocence, and charged the jury "that you can't discuss the case with anyone or allow anyone to discuss it with you." During these opening instructions, the trial court made the following inquiry:

"Now, before we begin the case, I want to ask each of you if you're able to put aside any preconceived notions you may have about the facts or evidence in this case and able [sic] to apply the standard of law that the defendants are presumed to be innocent of the charge before we begin this case any further. And I'll begin with the first row.

"(WHEREUPON, the jurors were polled and each responded affirmatively to the question, Can you do that.)"

This matter was not pursued again until the end of trial. After the closing arguments by counsel, but before the trial court instructed the jury, the appellant requested "to preserve his right at some time to poll juror Ward as to what went on prior to the selection of the jury." The trial court responded:

"All right. So your request is to poll the alternate juror [Ward] I'm going to excuse. It is denied. In order to remove any doubt since it was raised earlier in the proceedings by one of the defense counsel about the juror had made some statement--even though I polled them and was satisfied that she could sit as a juror--in an abundance of caution, I'm going to excuse her from the case. So that will make that issue moot. So I'll deny your request.

"DEFENDANT HOLLAND: Judge, she spoke to a man and his name never came up. Although, there's only two members of the jury that are men now, it's highly unlikely that those two men were the ones who were one of the ones that spoke up.

"THE COURT: All right. I'll deny your request. I'm going to excuse her from the case and excuse her from any further deliberations in the case.

"DEFENDANT HOLLAND: There may have been other people in the area that are members of the jury now that are female and heard the statement.

"THE COURT: All right. Well, you've made your request, and I'll deny your request."

A motion for mistrial "is addressed to the sound discretion of the trial court, and its ruling will not be reversed in the absence of a clear showing of abuse of discretion." Ex parte Jefferson, 473 So.2d 1110, 1114 (Ala.1985), cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 300 (1986). In cases involving juror misconduct, a trial court generally will not be held to have abused its discretion "where the trial court investigates the circumstances under which the remark was made, its substance, and determines that the rights of the appellant were not prejudiced by the remark." Bascom v. State, 344 So.2d 218, 222 (Ala.Cr.App.1977). However, the trial judge has a duty to conduct a "reasonable investigation of irregularities claimed to have been committed" before he concludes that the rights of the accused have not been compromised. Phillips v. State, 462 So.2d 981, 990 (Ala.Cr.App.1984). His investigation should include a "painstaking and careful" inquiry into the alleged juror misconduct. Lauderdale v. State, 22 Ala.App. 52, 54, 112 So. 92, 93 (1927).

In this case, the trial court abused its discretion by not conducting any inquiry, much less a "painstaking and careful" one, specifically to determine whether: (1) Ward made the remark attributed to her, (2) any other juror heard the remark, and (3) any juror who heard the remark could disregard it and decide the case solely on the evidence.

The fact that this case involves a prejudicial comment by a veniremember rather than an improper remark by an empaneled and sworn juror is immaterial, because the trial court's duty to ensure that the accused receives a fair trial is the same in either situation. See Forrest v. State, 257 Ala. 97, 57 So.2d 385 (1952); Newsome v. State, 570 So.2d 703 (Ala.Cr.App.1989); Hopkins v. State, 429 So.2d 1146 (Ala.Cr.App.1983); Smith v. State, 432 So.2d 550 (Ala.Cr.App.1983); Lauderdale v. State, 22 Ala.App. 52, 112 So. 92 (1927). Compare Gibson v. State, 555 So.2d 784 (Ala.Cr.App.1989).

In Forrest v. State, 257 Ala. at 98, 57 So.2d at 386, a venireman stated, during qualification of the venire, that he knew the murder victim to have been "a good man." Defense counsel moved for a mistrial and asked that the statement be excluded, but he did not request curative instructions. The Alabama Supreme Court observed:

"A trial does not begin until the jury panel is completed and the jury sworn. But the court should be careful to see that accused is accorded all rights preparatory to his trial.

"... The trial proper had not begun and so the motion to exclude and objection to the statement of the venireman was inapt.... [T]he court should be glad to see that no prejudicial influence occurs at that stage of the proceedings as well as after the trial begins, whether there is a motion made or not or whether the motion is apt."

Forrest, 257 Ala. at 98-99, 57 So.2d at 386-87 (emphasis added) (citation omitted). See also Ala.Code 1975, § 12-16-6, which provides the following:

"It is the duty of the court, before administering the oath prescribed by law to any grand, petit or tales jurors, to ascertain that such juror possesses the qualifications required by law, and the duty required of the court by this section shall be considered imperative." (Emphasis added.)

In Newsome v. State, 570 So.2d 703, 712 (Ala.Cr.App.1989), a murder prosecution, venireperson Rice, who had been struck peremptorily, told the trial judge before the beginning of the trial that, during the jury selection process, venireperson White had made the following statement: "[Accused] is guilty. He killed that girl." Rice also mentioned that she had heard venireperson Howe express an opinion about the facts of the case to venireperson Lyon. The trial court first examined Rice and Howe. Then, as this court's opinion in Newsome sets out, the judge took the following steps:

"Each of the jurors selected to try the case was individually called into chambers and questioned by the court and counsel. Each denied hearing any comments about the case, and each reiterated that he or she could give appellant a fair trial and base a decision solely on the evidence presented during the trial. Mrs. Lyon denied hearing any statement from Mrs. Howe concerning the case, but did remember talking with her about matters unrelated to the case. Mrs. White testified that she had not made up her mind about the case, that she believed the defendant to be innocent until proven guilty beyond a reasonable doubt, and that she could give him a fair trial."

Newsome v. State, 570 So.2d at 712. Mrs. White, an alternate, was excused before the jury began its deliberations. In light of the thorough investigation by the trial court into the circumstances surrounding the comments made by the prospective jurors in Newsome, this court found no abuse of discretion in the trial court's denial of the defense motion for mistrial.

In Hopkins v. State, 429 So.2d 1146, 1152 (Ala.Cr.App.1983), a veniremember who stated, in the presence of other members of the jury panel, "I think [appellant] should have already been hung," was successfully challenged for cause. This court held that the remark did not entitle accused to a mistrial because the trial court...