Kuenzel v. State

• Decision Date: 29 June 1990
• Docket Number: 7 Div. 140
• Citation: 577 So.2d 474
• Parties: William Ernest KUENZEL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 474

577 So.2d 474

William Ernest KUENZEL v.STATE.

7 Div. 140.

Court of Criminal Appeals of Alabama.

June 29, 1990.

Rehearing Denied Aug. 24, 1990.

James E. Malone, Talladega, for appellant.

Don Siegelman, Atty. Gen., and William D. Little and P. David Bjurberg, Asst. Attys.Gen., for appellee.

BOWEN, Judge.

William Ernest Kuenzel was indicted and convicted for the capital robbery-murder of Linda Jean Offord under Ala.Code 1975, § 13A-5-40(a)(2).The trial judge accepted the unanimous recommendation of the jury and sentenced the defendant to death by electrocution.The trial and sentencing procedures were in accord with the applicable sections of Alabama's 1981 Death Penalty Act found in Ala.Code 1975, § 13A-5-39 et seq.The defendant raises 27 major issues on this appeal from his conviction and sentence.

At the beginning of this opinion we must note that most of the arguments raised on appeal were not advanced in the trial court.

"However, since this is a death case, we must review the [alleged] error before us to see if it constitutes plain error and, thus, should be noticed despite the lack of a proper objection by defense counsel.Rule 45A, A.R.A.P.In considering what constitutes 'plain error' in a capital case, the Alabama Supreme Court has looked to the federal court's interpretation of what is 'plain error.'SeeEx parte Harrell, 470 So.2d 1309(Ala.1985);Ex parte Womack, 435 So.2d 766(Ala.1983).

"In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1(1985), the Supreme Court stated that the plain error doctrine should be used to correct only 'particularly egregious errors' ... which are those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings'....The plain error rule should be applied 'solely in those circumstances in which a miscarriage of justice would otherwise result.'Young, supra, 105 S.Ct., at 1046....

"Furthermore, the court noted that the plain error doctrine requires that the 'claimed error not only seriously affects "substantial rights"[of the defendant], but that it had an unfair prejudicial impact on the jury's deliberations.Only then would [a]court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice.'Young, supra, 105 S.Ct., at 1047, n. 14."

Hooks v. State, 534 So.2d 329, 351-52(Ala.Cr.App.1987), affirmed, 534 So.2d 371(Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005(1989).See alsoEx parte Hinton, 548 So.2d 562, 568(Ala.), cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383(1989);Murry v. State, 562 So.2d 1348(Ala.Cr.App.1988).Our examination of the record in this case reveals no plain error.

I.

The defendant argues that his constitutional rights to a fair trial and a reliable determination of punishment were violated when the chief jailer for the Talladega County Sheriff's Office served as foreman of the grand jury which returned the indictment against him.This issue is not supported by the record before this court.This allegation is raised for the first time on appeal.

The indictment was signed by James Truss as foreman of the grand jury.However, Truss is not further identified in the record.In fact, the record does not contain even the allegation that Truss was employed by the sheriff's office.Without any evidence in the record on appeal to support the allegation of error, this court cannot consider the alleged error even under the "plain error" doctrine of Rule 45A, A.R.A.P."The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred."Ex parte Watkins, 509 So.2d 1074, 1077(Ala.), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226(1987).

"Even though ... this Court[is] required to search the record for plain error in every case in which the death sentence has been imposed and to take the appropriate action when such error is found, ... this Court will [not] presume that reversible error occurred at trial when there is nothing in the record to so indicate, ...."

Ex parte Godbolt, 546 So.2d 991, 998(Ala.1987).

Furthermore, even assuming that Truss was employed by the sheriff's office, the mere fact that he was the foreman of the grand jury which indicted the defendant does not automatically render him incompetent under Ala.Code 1975, § 12-16-207(a) or § 12-16-209.SeeCardwell v. State, 544 So.2d 987, 991-92(Ala.Cr.App.1989)(wife of assistant district attorney, who was also part-time employee of district attorney's office, was competent to serve as member of grand jury although assistant district attorney was present at grand jury proceedings, where assistant district attorney did not participate in presentation of cases and there was no discussion between assistant district attorney and wife regarding any case pending before the grand jury);Eddings v. State, 443 So.2d 1308, 1309-10(Ala.Cr.App.1983)(district attorney's law partner, who possessed no disqualifying knowledge, was competent to serve as foreman of the grand jury).

II.

The defendant argues that error was committed in the denial of a preliminary hearing.Contrary to the defendant's argument, the record supports the finding that at the time this case was set for preliminary hearing, the defendant appeared with retained counsel and waived the hearing.After the indictment had been returned, the defendant, who was represented by different counsel, made a second request for a preliminary hearing.The trial judge denied that motion, finding that the defendant had waived the preliminary hearing and "[t]hat the present request for a preliminary hearing came after an indictment and was not timely filed."

"A defendant in Alabama does not have an absolute right to a preliminary hearing."Ex parte Potts, 426 So.2d 896, 899(Ala.1983)."Once an accused has been indicted, no grounds for reversible error exist when the accused's demand for a preliminary hearing is not satisfied."Id." 'Constitutionally, a preliminary hearing is not necessary to satisfy the requisites of due process.' ... [W]here an indictment is returned prior to the hearing, the accused is no longer entitled to the preliminary hearing."Herriman v. State, 504 So.2d 353, 357(Ala.Cr.App.1987).

III.

The defendant's motion for a change of venue due to pretrial publicity was properly denied.During voir dire examination of the jury venire, 30 of the 64 veniremembers admitted that they had either heard or read something about the case.However, only one member of the venire maintained that he would be influenced by that prior knowledge, and he was excused for cause.The other 29 veniremembers indicated that their knowledge of the case would not influence their verdict.

In denying the motion for change of venue, the trial judge stated, "Well, the jury was questioned on that [pretrial publicity] to a great extent, and there was nobody that said they couldn't put it out of their minds.Except maybe that Lamberth fellow, and I have already granted [the defendant's] challenge."

There were only eight newspaper articles to support the defendant's claim of prejudicial publicity.Those articles are dated November 11, 1987; November 17, 1987; January 6, 1988; August 12, 1988; and August 13, 1988.No specific dates were given for the three remaining articles.The trial began on September 19, 1988.Although additional newspaper articles were published after the qualification of the venire had begun, upon questioning by the trial judge, there was no indication that any veniremember had seen or heard about those articles.There was evidence that at least some of the articles which were published at a date closer to the defendant's trial were deliberately solicited or invited by either the defendant himself or members of his family.

The defendant has failed to satisfy the test set out in Ex parte Grayson, 479 So.2d 76, 80(Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157(1985), because he has not proved that "there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity.""Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue."Id."The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved."Id."The relevant question is not whether the community remembered the case, but whether the jurors at [the defendant's] trial had such fixed opinions that they could not judge impartially the guilt of the defendant."Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847(1984).

"To ensure that the defendant has a fair and impartial jury, it is not necessary that the veniremembers be totally ignorant of the facts surrounding the case.Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589(1975).'It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751(1961)."

Ex parte Whisenhant, 555 So.2d 235, 238(Ala.1989).Nothing in the record shows that any adverse publicity prejudiced the veniremembers against the defendant.The defendant has failed to show that the news coverage was so extensive as to be presumptively prejudicial and he has failed to demonstrate "actual prejudice in the entire venire."Bundy v. Dugger, 850 F.2d 1402, 1425(11th Cir.1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980(1989).Therefore, the judgment of the trial judge denying the motion for change of venue is due to be upheld.

IV.

The trial judge acted well within his discretion in denying the defendant's motion for individual and separate voir dire of each veniremember.

The venire was examined in three separate...