Johnson v. State, 2 Div. 511
| Decision Date | 08 December 1987 |
| Docket Number | 2 Div. 511 |
| Citation | 536 So.2d 957 |
| Parties | Paul Anthony JOHNSON v. STATE |
| Court | Alabama Court of Criminal Appeals |
Robert F. Prince, Tuscaloosa, for appellant.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.
This case is remanded for a hearing as to what transpired on record page 625 of the trial court record.
This court asks for clarification of the following:
"(Whereupon a bench conference was had on the record)" (R. 625)
The bench conference was not included in this record on appeal.
Prior to such hearing the trial court shall instruct the district attorney to furnish to the appellant's attorney a copy of the letter dated November 13, 1987 addressed to the Court of Criminal Appeals and all exhibits thereto attached. The district attorney should set forth such matters by written motion addressed to the trial court. The appellant's attorney shall also furnish the district attorney with copies of all such information as he may plan to introduce to correct this record.
Pursuant to A.R.A.P 10(f) the trial court shall then determine what matters should be contained in the corrected record and shall file a due return to this court which shall include appropriate written findings by the trial court as to such matters.
REMANDED WITH INSTRUCTIONS FOR A HEARING.
All the Judges concur.
ON RETURN TO REMAND
Paul Anthony Johnson was indicted for murder in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment. The appellant was sentenced to life imprisonment in the state penitentiary.
On July 26, 1984, Francis Johnson, the victim, was found dead in the bedroom of her home by this appellant. The appellant was the victim's husband. The cause of death was strangulation and stab wounds in the chest.
The house where the murder occurred is located in Pickens County, Alabama.
I
The appellant asserts that the trial judge erred by denying his motion for a new trial based on a juror's failure to respond to a question during voir dire.
Defense counsel, Robert Prince, explained at the beginning of his questioning during voir dire that his questions applied to family members. Prince asked the jury venire the following: (R. 30). The following responses were given by members of the jury venire:
At the hearing on the motion for a new trial, Jeffrey Edgeworth, who sat on the appellant's jury, testified that his sister-in-law is a Pickens County Deputy Sheriff and was so employed when the appellant's trial took place. Edgeworth observed that his sister-in-law sat in the courtroom during the entire trial. Edgeworth further testified that he raised his hand to inform Prince about his relationship to a deputy sheriff. However, Prince did not see him when he raised his hand. Edgeworth stated that his being related to a deputy sheriff would not affect his ability to judge this appellant fairly from the facts.
An affidavit by the court reporter for the appellant's trial, Elise Smith, stated that she sat facing prospective jurors during the voir dire. Smith made a point to watch for people on the jury venire who went unnoticed when they raised their hands and notified the trial judge. Smith did not see anyone on the jury venire who raised their hand go unnoticed by the defense counsel.
Obviously, the trial judge and defense counsel also did not see Edgeworth raise his hand if, in fact, he did so. The trial judge, unfortunately, did not state his reasons for denying a new trial.
Beauregard v. State, 372 So.2d 37, 41 (Ala.Crim.App.) writ denied, 372 So.2d 44 (Ala.1979) (citations omitted).
Smithson v. State, 50 Ala.App. 318, 320-321, 278 So.2d 766 (Ala.Crim.App.1973), quoting Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969). However, see Trahan v. State, 450 So.2d 1102 (Ala.Crim.App.1984).
We are aware that not every failure of a venireman to respond correctly to a voir dire question will entitle the losing party to a new trial. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970).
In Wallace By Inman v. Campbell, 475 So.2d 521 (Ala.1985), the plaintiff sued a police officer and the City of Andalusia, which is located in Covington County, for injuries sustained during a high speed chase with the police officer. One juror, Mrs. Richburg, failed to respond that she was a third cousin of the Covington County Sheriff. At the hearing on the motion for a new trial, Richburg testified that the fact she was related to the sheriff did not influence her deliberation in the case or its outcome. The ...
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