Jones v. State

• Decision Date: 20 December 1996
• Docket Number: CR-95-0560
• Citation: 719 So.2d 249
• Parties: Paul JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 249

719 So.2d 249

65 USLW 2487

Paul JONES v. STATE.

CR-95-0560.

Court of Criminal Appeals of Alabama.

Dec. 20, 1996.

Rehearing Denied Feb. 28, 1997.

Thomas R. Edwards, Wetumpka; and Jim L. DeBardelaben, Montgomery, for appellant.

Jeff Sessions and Bill Pryor, attys. gen., and Melissa Math, asst. atty. gen., for appellee.

COBB, Judge.

Paul Jones was convicted on November 3, 1995, of three counts of sodomy in the first degree, three counts of sexual abuse in the first degree, and three counts of sexual abuse, second degree. The offenses underlying the convictions occurred over a period of several years and involved the appellant's sexual abuse of his minor niece by marriage, M.C. The appellant was sentenced to 10 years in the penitentiary on each count of sodomy in the first degree, one year and one day in the penitentiary on each count of sexual abuse in the first degree, and one year in the county jail on each count of sexual abuse in the second degree. All the sentences were to be served concurrently.

The appellant raises three issues on appeal.

I.

The appellant argues that the trial court erred in postponing the service of prospective grand jury members to a date after which they were originally summoned to appear.

The venire from which the grand jury that indicted him was selected consisted of 25 veniremembers who were originally scheduled to serve the previous week, were excused that week, and were told to report for duty the following week.

William E. Sayers, Circuit Clerk of Elmore County during this two-week period, testified at a motion hearing on September 19, 1995, that all the cases originally scheduled for the civil docket during the week of January 3, 1995 had settled before trial. Judge Bush informed the jury at that time that it was excused for the week. Some jurors informed Judge Bush that they would like to serve on a jury at another time. (R. 61-64.) Mr. Sayers further testified, that at Judge Bush's direction, he recorded the names of those jurors who had indicated that they would like to serve and added them to the list of jurors summoned for the week of January 9. (R. 78-86.)

Other testimony revealed that the clerk did nothing to solicit the jurors' participation in the later venire. (R. 99). Sayers also revealed that he had no knowledge of any case that was scheduled to be presented to the January 9, 1995, grand jury and that he knew of no way that the jurors added to the January 9 venire could have obtained that information. (R. 98-99.) Additionally, Sayers testified that the veniremembers whose service was carried over had no way of knowing whether their service would be on a criminal petit jury, a civil petit jury, or a grand jury. (R. 101.)

The appellant maintains that this procedure was illegal and resulted in the arbitrary selection of the grand jury that indicted him. He also alleges that the judge involved himself in the selection process. We find his argument without merit.

Absent proof to the contrary, or an offer of proof, there is a presumption that no legal fraud exists in the jury selection procedure. Nixon v. State, 291 Ala. 657, 659, 286 So.2d 315, 317 (1973).

The appellant's contention that the inclusion of these jurors on the grand jury was illegal is not supported by Alabama law. Section 12-16-74, Ala.Code 1975 provides, in part that "[t]he court may in any case, including capital cases, excuse or postpone the service of any prospective juror outside the presence of the parties and their counsel in accordance with the provisions contained in section 12-16-63." In Brewer v. State, 440 So.2d 1155 (Ala.Cr.App.1983), this Court held that there was no error when a potential grand juror who was summoned to serve during one jury term had his service postponed until the selection of a later grand jury.

We find that there was no error in the postponement of the veniremembers' service; even if the postponement was error, it was harmless. See Ala.R.App.P., Rule 45. The appellant has not demonstrated how he was prejudiced by the postponement. The appellant made no objection to the manner in which the January 3, list of prospective jurors was selected nor did he voice any particular concern as to its composition. The record indicates that on January 3, everyone who expressed a desire to serve on a venire was added to the list of jurors the following week. (R. 79.) There was no arbitrary selection process. The judge had no input in the selection of the grand jury that indicted the appellant. Selection was by means of a totally random process. (R. 94-95.) The veniremembers who wanted their service postponed had no idea what type of jury, if any, they would be serving on the following week.

Additionally, the appellant makes only a general argument that his indictment should be quashed because the grand jury was "illegally constituted." There is no allegation that his substantial rights were affected in any way because of the manner in which the grand jury was selected; therefore, any error or irregularity which may have occurred was harmless to the appellant. Even if error has occurred, where the appellant's substantial rights have not been injured, we will not reverse the judgment of the trial court.

II.

The appellant argues that the search warrant issued by the trial court authorizing the examination and photographing of his genitalia was neither authorized by Alabama law nor supported by probable cause. We find the appellant's argument without merit.

The appellant argues that, by definition, a search warrant may be issued only for the recovery of personal property. Section 15-5-1, Ala.Code 1975, defines the term "search warrant,":

"A 'search warrant' is an order in writing in the name of the state signed by a judge, or by a magistrate authorized by law to issue search warrants, and directed to the sheriff or to any other constable of the county, commanding him to search for personal property and bring it before the court issuing the warrant."

The issue whether a search warrant authorizing the search of someone's body is permitted by Alabama law appears to be one of first impression. The vast majority of caselaw regarding the admissibility of evidence gathered from the human body addresses warrantless search procedures instituted pursuant to an arrest. However, on at least two occasions, courts in other states have upheld search warrants similar to the one the appellant challenges here. See, e.g., Rodriques v. Furtado, 410 Mass. 878, 575 N.E.2d 1124 (1991) (dicta indicating that a warrant authorizing the search of a body cavity would be valid if issued on the authority of a judge and based on a strong showing of particularized need and supported by a high degree of probable cause); Birchfield v. State, 412 So.2d 1181 (Miss.1982) (holding that municipal judge had authority to issue a search warrant authorizing the taking of a blood sample from a rape suspect for identification upon sufficient probable cause). The instant case is unique in that the evidence was not needed to identify the offender or verify the existence of certain substances in his system, but to corroborate a graphic account of sexual abuse given by a victim familiar with the appellant.

Both § 15-5-2, Ala.Code 1975, and Rule 3.8, Ala.R.Crim.P., address the issuance of search warrants. The requirements set out by the rule and the statute are virtually identical; however, unless otherwise provided by law, Rule 3.8 supersedes § 15-5-2. Ex parte Oswalt, 686 So.2d 368, 373 (Ala.1996).

Section 15-5-2 Ala.Code 1975 provides:

"A search warrant may be issued on any one of the following grounds:

"(1) Where the property was stolen or embezzled.

"(2) Where it was used as the means of committing a felony; or

"(3) Where it is in the possession of any person with the intent to use it as a means of committing a public offense or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its discovery."

Rule 3.8, Ala.R.Crim.P. provides:

"A search warrant authorized by this rule may be issued if there is probable cause to believe the property sought:

"(1) Was unlawfully obtained;

"(2) Was used as the means of committing or attempting to commit any offense under the laws of the state of Alabama or any political division thereof;

"(3) Is in the possession of any person with intent to use it as a means of committing a criminal offense, or is in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its discovery, or;

"(4) Constitutes evidence of a criminal offense under the laws of Alabama or any political subdivision thereof."

(Emphasis added.)

We disagree with the appellant's assertion that personal property is the only type of evidence that may be obtained by a validly issued search warrant. There is ample authority, both in Federal and state caselaw, to suggest that a search warrant may be issued to recover evidence which cannot be classified as personal property, but that can establish a link between the subject of the search and the criminal activity.

A line of Federal cases acknowledges that the human body can harbor evidence that a crime has been committed. Generally, search and seizure of evidence within an accused's body is authorized by law when there is sufficient probable cause that the search will produce evidence linking the subject to a crime, when the search is a reasonable one, and when the search is performed in a reasonable manner. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Schmerber involved a warrantless blood alcohol test performed at the direction of police officers at a hospital where the defendant, who was under arrest, was receiving treatment for injuries suffered in an accident involving the automobile he had apparently been driving while intoxicated. The Schmerber court concluded that the blood alcohol test was reasonable under...