Howell v. City of Birmingham
Decision Date | 22 January 1980 |
Docket Number | 6 Div. 916 |
Citation | 383 So.2d 567 |
Parties | Walter W. HOWELL v. CITY OF BIRMINGHAM. |
Court | Alabama Court of Criminal Appeals |
Ferris S. Ritchey, Jr., Birmingham, for appellant.
W. O. MacMahon, III, Birmingham, for appellee.
This is an obscenity case involving the exhibition of a movie entitled "Honeypie" in violation of Birmingham City Ordinance 16-18 as amended.
The defendant was employed as a clerk and movie projectionist at the Tomkat Theatre in Jefferson County. He was tried and convicted in Municipal Court. He appealed to the Circuit Court, was tried by a jury and fined five hundred dollars. The trial judge imposed a sentence of 180 days hard labor.
In Holderfield v. City of Birmingham, Ala.Cr.App., 380 So.2d 990, (1979), this Court held that a jury trial is not constitutionally required for an obscenity prosecution in the municipal court.
As in Starley v. City of Birmingham, Ala.Cr.App., 377 So.2d 1131 (1979), and Holderfield, supra, there is no evidence that Birmingham City Ordinance 16-18 as amended has been intentionally and selectively enforced in violation of the equal protection clause of the Fourteenth Amendment.
The defendant alleges that the cumulative effect of prejudicial statements by the trial court and the prosecutor in reference to the film denied him a fair and impartial trial.
During the voir dire examination of the jury venire, the prosecutor inquired:
Also, the trial judge stated:
In Starley, supra, this Court addressed a similar issue:
In Brown v. State, 48 Ala.App. 304, 307, 264 So.2d 529, 531, reversed on other grounds, 288 Ala. 680, 264 So.2d 549 (1971), this Court held that the trial court's use of the phrase "regardless of how nauseating the evidence may be" while qualifying a jury with respect to their feelings about the imposition of the death penalty did not constitute error.
Probable prejudice for any reason disqualifies a prospective juror. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961). The trial court has a duty to ascertain whether jurors called for trial are subject to disqualification. Folkes v. State, 17 Ala.App. 119, 82 So. 567 (1919); Alabama Code (1975), Section 12-16-150. Alabama criminal trial procedure dictates that the prosecution, as well as the defense, has "the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case". See Title 30, Section 52, Code of Alabama 1940. For these reasons, the remarks of the trial judge and the prosecutor were not error.
We have carefully examined the comments by the prosecutor in his closing argument which the defendant finds objectionable. They do not constitute reversible error. The trial judge overruled the objections and instructed the jury, in effect, that counsel are allowed to comment upon the reasonable inferences to be drawn from the evidence. A prosecutor "may comment on proper inferences which may be drawn from the evidence and may draw conclusions from the evidence based on his own reasoning". Andrews v. State, 359 So.2d 1172, 1178 (Ala.Cr.App.1978).
The defendant was originally convicted in municipal court, fined two hundred and fifty...
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