Jordan v. State
| Decision Date | 01 October 1974 |
| Docket Number | 5 Div. 141 |
| Citation | 56 Ala.App. 55,318 So.2d 793 |
| Parties | Karen Elaine JORDAN, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen., and Kent Brunson, Asst. Atty. Gen., for the State.
This is a companion case of Connell v. State, 56 Ala.App. 43, 318 So.2d 782, which was reversed and remanded by this court on May 7, 1974. This opinion is subject to review by the Supreme Court.
This instant appellant-defendant was indicted, along with Connell and two others, in separate indictments, for murdering Burt Michael Froney. The jury convicted her of murder in the second degree, which was implied in the charge of murder in the first degree. The jury fixed her punishment at imprisonment for life.
Our statement of facts in Connell leading up to the alleged homicide, at the time thereof, and subsequent thereto, is substantially that same as the record presents in the instant case. We adopt this statement for the purposes of this opinion.
Many of the legal issues in Connell and here are in many respects the same. Here, the trial court did not refuse cross examination of Mrs. Froney with respect to an oral statement she gave some officers, which was tape recorded and transcribed, but not signed. The trial court in Connell refused to permit the defendant to cross examine about the taped statement. Such question did not arise in the instant case. We will advert to the legal issues here which appellant asserts as error. She was represented by appointed counsel during the trial and is represented on this appeal by the same appointed counsel. She was then and is now an indigent.
We will first take up pre-trial motions that were filed and heard before the trial and overruled.
We construe appellant's contention in her counsel's brief that she was insane at the time the alleged offense was committed and at the time of trial; that she was entitled to an inquisition to determine her mental condition; that such inquisition was authorized, so the appellant contends, by §§ 425, 426, and 428 of Title 15, Code of Alabama 1940. The motion for such sanity investigation was supported by some affidavits with respect to which we will omit details. The evidence presented on the question of insanity is not comparable The trial court under the evidence did not err in denying appellant's motion to appoint three reputable specialists-practitioners in mental and nervous diseases to examine her. The trial court was under no duty to appoint a lunacy commission or to procure a report of the superintendent of Alabama state hospitals under provisions of § 425, supra. The court has the right but not the duty to seek these aids for advisory purposes when, in the discretion of the court, aid will be helpful. Eaton v. State, 280 Ala. 659, 197 So.2d 761; Howard v. State, 278 Ala. 361, 178 So.2d 520. The affidavits filed in support of the position do not, in our judgment, support such appointments or procedure.
with that in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, and is not sufficient to raise a 'bona fide doubt' as to appellant's sanity and her mental competence to stand trial.
We note that the trial court in its oral charge instructed the jury that, if they believed the evidence, they could not find the appellant not guilty by reason of insanity. The appellant did not except or object to this instruction.
We also note that on the trial of the issues of not guilty, the state introduced in evidence (Tr. 354) appellant's undisputed statement (Appellant did not testify) made in the presence of Officers Ronnie Watkins, et. al, on February 2, 1972, wherein she related in detail events before, at the time of, and after the commission of the homicide. The statement largely comports with the testimony of Mrs. Froney and some of the other witnesses for the state. A few crucial details that implicated the appellant were absent. Appellant's statement indicated lucidity at that time.
The statement, although not decisive, downgrades or casts a shadow on appellant's contention of insanity when the crime was committed and at the time of trial. In other words, it appears from this statement that the appellant was not suffering from any mental disturbance. The action of the court in overruling the motion was free of error.
It appears that the Alabama warrant for the arrest of the appellant was issued by Judge Tyner, who was a trial judge in the nisi prius court where the appellant was convicted and from the judgment of conviction she here appeals.
Motion for preliminary hearing was filed before the indictment on March 22, 1972. It was presented to the court after the indictment was returned. The trial court, as the record indicates, had a full schedule of official work. The court overruled the motion for preliminary. This ruling occurred after the indictment was returned (Tr. 117).
Ex parte Campbell, 278 Ala. 114, 176 So.2d 242, at page 243.
The court did not commit error in overruling the motion for a preliminary hearing.
Appellant contends that she was unlawfully denied her constitutional right to see or inspect a statement that she made to federal authorities, which the state acknowledged the appellant made.
Our search of the record fails to reveal to us any evidence that such statement was made or that the state had knowledge of such statement; nor do we find that such statement was in the possession, custody and control of the Lee County Sheriff's Office. No such statement was introduced in evidence or offered in evidence by the state that we are able to find.
Besides, we think the motion to produce lacked specificity and was too broadsweeping and general to meet the requirements of law. McCants v. State, 282 Ala. 397, 211 So.2d 877; Smith v. State, 282 Ala. 268, 210 So.2d 826; Sanders v. State, 278 Ala. 453, 179 So.2d 35.
Appellant moved the court for a change of venue due to the extensive publicity in the news media of Lee County, and also appearing in the news media of other counties. News items appearing in various newspapers concerning the homicide were introduced in evidence. Also broadcasters over the air news media testified. It appears that there was considerable publicity prior to the trial concerning the crime.
The newspaper articles gave prominent space about the alleged offense and the arrests of the four alleged defendants who were indicted. These items did not carry any editorial implications that the suspected murderers were guilty of the crime. So far as the record shows, the television and radio accounts of the crime and the arrests of the defendants were free of such implications of guilt. They were just news items carrying usual publicity in prominent spaces about the nature of the crime and the arrests of the defendants.
On a motion for a change of venue in a criminal case, the defendant has the burden of showing to reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Tiner v. State, 271 Ala. 254, 122 So.2d 738.
The trial judge was a resident of Lee County and was in a position to evaluate conditions and sentiments in his own county. Donald v. Matheny,276 Ala. 52, 158 So.2d 909(14); Edwards v. State, 51 Ala.App. 433, 286 So.2d 308, cert. den., 291 Ala. 777, 286 So.2d 313.
A change of venue was unnecessary. The trial was had before a competent jury who, according to our examination, were free of any prejudice created by the news media or otherwise. They returned a verdict of murder in the second degree when the indictment charged murder in the first degree.
Defendant on the day of the trial moved the court for a continuance on the ground that the defendant was being tried subsequent to two of her co-defendants, who were tried and convicted. Accounts of these trials and the results were given coverage in the newspapers.
The trial court has discretion on the question of continuance or postponement, and such discretion will not be revised in the absence of clear abuse of discretion. Logan v. State, 251 Ala. 441, 37 So.2d 753. Abuse of discretion is not here shown. We will not charge the court with error in its refusal to continue the case.
It appears in the record that the appellant submitted to the trial court for its consideration a series of seventy or more questions to be asked the venire concerning their qualifications, interests, or bias in the trial of the defendant.
Defendant complains in her argument that the court erred in striking from the list questions 29 and 57, which appear in the defendant's brief. We quote:
...
To continue reading
Request your trial
-
Miller v. State
...of the jury and before they leave the box, and any subsequent objection or exception cannot be considered on appeal. Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, writ. denied, 294 Ala. 761, 318 So.2d 801; McNair v. State, 50 Ala.App. 465, 280 So.2d 171, certiorari denied, 291 Ala. 789, 2......
-
Colley v. State
...So.2d 35 (1977); Turk v. State, Ala.Cr.App., 348 So.2d 878 (1977); Peoples v. State, Ala.Cr.App., 338 So.2d 515 (1976); Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, cert. denied, 294 Ala. 761, 318 So.2d 801 On appellant's second motion for change of venue, made after the trial of his co-......
-
McLaren v. State
...the alleged offense, and the arrest of alleged defendants who were indicted, a change of venue was unnecessary. Jordan v. State, 56 Ala.App. 55, 318 So.2d 793. The articles contained in the record appeared to be factual and fair. They do not appear to have been intended to prejudice the cit......
-
Matthews v. State, 8 Div. 61
...208 So.2d 241 (1968); Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. denied 291 Ala. 776, 280 So.2d 797 (1973); Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, cert. denied, 294 Ala. 761, 318 So.2d 801 (1974); Scaife v. State, Ala.Cr.App., 337 So.2d 146 It appears that while Donna Hop......