Kendrick v. State, 3 Div. 324

• Decision Date: 22 April 1975
• Docket Number: 3 Div. 324
• Citation: 312 So.2d 583,55 Ala.App. 11
• Parties: Theodis KENDRICK, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 583

312 So.2d 583

55 Ala.App. 11

Theodis KENDRICK, alias v. STATE.

3 Div. 324.

Court of Criminal Appeals of Alabama.

April 22, 1975.

Sam W. Taylor, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

PER CURIAM.

A grand jury of Montgomery County, Alabama, indicted Theodis Kendrick for the commission of rape. Upon his trial a petit jury found him guilty and fixed his punishment at imprisonment in the penitentiary for a period of 40 years. Judgment and sentence were in accord with the verdict of the jury. Kendrick appealed to this court. There was no motion for a new trial.

Kendrick was represented by counsel throughout the proceedings in the trial court, at arraignment, during the trial and at the time sentence was pronounced and judgment entered. He is represented here by court appointed counsel who is the same attorney who represented him below.

In brief filed here on behalf of Kendrick, it is contended that the judgment of conviction should be reversed because the trial court did not respond properly to an inquiry directed to the court by the foreman of the jury during a break in the jury's deliberation.

The transcript of the record reveals that after the case had been submitted to the jury, and the jury had retired to the jury room, it returned into open court where the following proceedings occurred:

'THE COURT: All right. I am informed by the Bailiff that you have a question. You may pose it.

'THE FOREMAN: Well, Judge, the question is: When is a person eligible for parole? How much of their sentence do they . . .

'THE COURT: All right. Let me answer the question very emphatically in this fashion. I believe at the beginning of the trial, I emphasized, and in the charge of the trial (sic), I emphasized that your duty is to try this case based upon the facts that are presented for your consideration from this witness stand, and nothing else. And when you go in that Jury Room and deliberate on parole or who is eligible or who is not, you are simply not upholding the oath of office that you took as Jurors to well and truly try the issues based upon the evidence which is presented for your consideration. Now, your job is to do this; to determine whether this defendant is guilty or not guilty. If he is not guilty, come back with a verdict which says, 'We the Jury, find the defendant not guilty.' If you find the defendant guilty, then it is your duty to determine what is the punishment which would be imposed upon this defendant from ten years to life imprisonment. Any other matters are for others to determine and for you not to be concerned with. Your responsibility is arduous and weighty enough. Do not concern yourself with others and do not concern yourself with matters which are not of your concern in the first place. All right. Now, you may retire and resume your deliberations.

(Whereupon, the Jury returned to the Jury Room.)

'THE COURT: Is the State satisfied?

'MR. THOMAS: Yes, sir.

'THE COURT: Defense satisfied?

'MR. TAYLOR: No, your Honor. I would like to interpose an objection.

'THE COURT: Well, state it in the record.

'MR. TAYLOR: I would like to interpose an objection to the further oral charge of the Court on this ground. That the Court did not advise the jury that they were to assume that there would be no parole in making their decision as to how much time.

'THE COURT: Well, the objection is duly noted.

'MR. TAYLOR: Thank you, Your Honor.'

The observation of the court, 'Well, the objection is duly noted' is tantamount to the overruling of the objection. See Harrison v. Baker, 260 Ala. 488, 71 So.2d 284.

Four cases are cited in appellant's brief in support of his position presently under consideration. The opinions in Oliver v. State, 232 Ala. 5, 166 So. 615, and Hammond v. State, 26 Ala.App. 391, 160 So. 900, contain the broad statement often repeated, to the effect that a party is entitled to a trial free from any extraneous influence on the part of anyone that might be to the prejudice of that party's rights. In Oliver, supra, it is said to the effect that each case of alleged improper deliberations of the jury must be judged by its particular facts. See Bell v. State, 227 Ala. 254, 149 So. 687.

The other two cases deserve more detailed consideration. In McCray v. State, 261 Ala. 275, 74 So.2d 491, a juror inquired of the court:

". . . if a man is sentenced for a certain number of years, how would a parole and given time apply, on a certain number of years, say five, ten or whatever the sentence might come, from there on up?"

The Court replied:

". . . That is a matter purely with the Parole Board. It is generally customary for them to allow a man a third of the time, but the rules change every day with them."

The Court further stated:

". . . That's all; that's the law. It is purely up to the Parole Board under the law. That's all I can say."

And the Court replied in the negative to a juror's qeustion:

". . . There is no way for you, Judge, to define what the probabilities would be?"

A juror posed an additional question:

". . . I see, just as a juror, is there any particular rule that they follow?"

The court replied:

". . . Not a thing."

The Supreme Court of Alabama reversed because the trial court failed to instruct the jury in positive terms that the possibility of a parole was not a matter for the consideration of the jury. See 261 Ala. at page 278, 74 So.2d at page 494.

In Lawley v. State, 264 Ala. 283, 87 So.2d 433, a juror inquired of the Court as to 'the number of years that he (defendant) would be eligible for parole.' The court replied:

". . . Well, I don't think they have any number. They have certain rules down there, depending on a good record; a man can qualify for probation after a certain length of time. In other words one with a life sentence gets paroled lots of times but he is supposed to serve a third of his sentence. Different ones have different times.

". . . It is possible with a life sentence if he makes a good record he might qualify for parole in 15 years, maybe, that is altogether up to the Board of Pardons. Gentlemen, if that information is helpful, that is as near as I can tell you about it."

After an objection was interposed by counsel for defendant the trial court made the following statement:

". . . I haven't given them any instructions. That has got nothing to do with this case, gentlemen. The fact is that is information I was trying to give you in answer to your question. That isn't a question before you gentlemen and shouldn't enter into it; it has got nothing to do with the facts in this case and not really a part of it. Anything the Court may have said is not giving you instructions and should not have any effect on your verdict in this case, whether you find this defendant guilty or not guilty and it is not proper for you to consider it, and I withdraw anything I have said about it."

An exception was interposed to the court's remarks. The Supreme Court of Alabama reversed, saying in effect, that the remarks of the trial court as to the laws or customs governing the granting of paroles were erroneously made and that the effort of the trial court to cure the error by withdrawal of the remarks were inefficacious to eradicate the prejudicial effect of the court's erroneous remarks.

The response directed to the juror by the trial court in this case is entirely different from the responses made by the trial courts in the McCray and Lawley cases. Consequently, the holdings in those cases are not dispositive of the question here under consideration.

As we have heretofore indicated in McCray and Lawley, the trial courts referred to the laws or customs under which the Parole Board operated. In this case the trial court made no such reference and as soon as the nature of the juror's inquiry became apparent to the court, the juror was interrupted and the court proceeded in an emphatic manner to advise the jury in effect, that the question indicated possible consideration of improper matter by the jury and forcibly admonished it to render its verdict based solely on the facts presented to it from the witness stand.

There are other Alabama cases to which consideration will be given but which do not, in our opinion, apply to this case.

In Taylor v. State, 42 Ala.App. 617, 174 So.2d 335, cert. denied, 278 Ala. 713, 174 So.2d 336, the Court of Appeals reversed the judgment of conviction because of the apparent gratuitous instructions given to the jury by the trial court to the effect that the jury was not a pardoning board and would not be justified in pardoning a person who is being tried for a crime. Reversal was based on the holding of the Supreme Court of Alabama in the McCray and Lawley cases.

The holding of this court in Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, was based on facts altogether different from those presented in this case. In effect, this court held that the trial court erred in not granting a new trial because during a meal preceding the jury's deliberations, the sheriff informed the jury as to the possibility of parole in the event the defendant was sentenced to the penitentiary. In response to a question asked him by one of the jurors as to how soon a person could be paroled if given a life sentence, the sheriff replied, 'Well, it depends . . . well, it depends on their behavior . . . well, the earliest they would ever be considered would be ten years.' The holding in Yelton, supra, is obviously not apposite here.

As shown above, the holdings of the appellate criminal courts of this State are to the effect that the possibility of future interference with the sentence imposed by pardon or parole authorities is not a proper matter for the consideration of a jury faced with the task of determining a defendant's guilt and imposing punishment.

Jurors have not been isolated from the every day affairs of life. They know there are boards, commissions and...