O'Leary v. State, 1 Div. 994

• Decision Date: 23 June 1981
• Docket Number: 1 Div. 994
• Parties: Daniel P. O'LEARY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 219

417 So.2d 219

Daniel P. O'LEARY v. STATE of Alabama.

1 Div. 994.

Court of Criminal Appeals of Alabama.

June 23, 1981.

Rehearing Denied Aug. 4, 1981.

W. Kenneth Gibson, Lloyd E. Taylor of Taylor, Benton, Irby & Gibson, Fairhope, Peter F. K. Baraban, Miami, Fla., for appellant.

Charles A. Graddick, Atty. Gen., J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

In accordance with the opinion of the Supreme Court of Alabama in this cause (January 9, 1981) reversing our judgment heretofore rendered, we proceed to review the case on appeal as to all issues presented other than the one determined by the Alabama Supreme Court.

Two issues on appeal relate to the composition of the jury roll of Baldwin County, the placement of cards bearing the names of persons on the jury roll, into the jury box, and the resultant composition of said jury box, from which the names of jurors were drawn at random by a circuit judge to constitute (1) venire from which names of the grand jury that indicted defendant were drawn at random by a circuit judge and (2) the names that were drawn at random therefrom to form the venire of the petit jury from which the jury that tried defendant was selected. Appellant contends that as to (1) the court erred in denying the defendant's "motion to quash the grand jury venire which returned the indictment against him." As to (2), appellant says that the court erred in denying defendant's motion to strike the "petit jury venire or in the alternative continue the trial of the cause pending the implementation of a new jury act," Acts 1978, Regular Session, No. 594, p. 712 et seq., approved April 27, 1978.

As to (1), appellant concedes that the issue has been determined adversely to him in Oyarzun v. Pittman, Ala.Cr.App., 367 So.2d 574, cert. denied, Ala., 367 So.2d 584. In Oyarzun, the appellant was one of approximately ten individuals who had been arrested for and charged with the possession of a large amount of marijuana that formed the basis of the prosecution in the instant case.

It was held in Oyarzun that he was not entitled to a judgment in his favor on his petition for a writ of mandamus against the clerk, chairman and members of the Baldwin County Jury Commission, alleging that they had failed to carry out their duties as to the jury roll and filling the jury box with the names of proper prospective jurors. By agreement of the parties in this case and in Oyarzun, the motion in this case, as to the grand jury that indicted this appellant, and the petition for mandamus in Oyarzun were consolidated for the purpose of a hearing of both, which was conducted and which included a large amount of evidence. The parties herein have stipulated that the transcript of the evidence in Oyarzun shall be considered as if it were a part of the transcript in this case. We adhere to the conclusion reached therein, and we see no good reason to supplement, or otherwise change in any way, the opinion in Oyarzun v. Pittman, supra.

As to (2), it necessarily follows, we think, that what was held in Oyarzun is applicable, except as the question may be affected by the provisions of Acts 1978, Regular Session, No. 594, which was enacted subsequent to the hearing by the trial court of the petition for mandamus in Oyarzun and made material changes in the preexisting statutory law as to "County Jury Commissions" throughout Alabama. According to Acts 1978, No. 594, it became effective on the date of its approval, April 27, 1978.

One of a number of major changes in the law made by Acts 1978, No. 594, was that the jury box, called the "master jury box," to distinguish it from the "trial court jury box" to be maintained by the jury commission, was not required to be filled with the names (cards) of all of the persons on the county jury roll or "list," as the same is called by Acts 1978, No. 594. Section 4 of said Act provides in detail for the number and the percentage "of the total number of names on the master list" to be placed in the master jury box and a formula for computing how many go into the box so as to further secure the selection "at random from a fair cross section" of the area affected and "the opportunity" of residents thereof "to be considered for jury service," as expressed in Section 1 of the Act. See also ARJA Rule 46 as to the formula.

In pressing his contention that the court erred in denying defendant's motion to strike the "petit jury venire or in the alternative continue the trial of the cause pending the implementation of the new jury act," appellant relies heavily upon the following provision of § 4(b) of the Act:

"In July of each even-numbered year, the master jury box shall be emptied and refilled as herein prescribed."

Defendant's motion "to strike venire of petit jurors ... or in the alternative to continue" the cause was filed on July 21, 1978. The case was then set for trial for July 31, 1978, after one or more continuances at the request of the defendant. The motion was heard on July 24.

The hearing on the particular motion was replete with evidence of the utter impossibility of an instantaneous metamorphosis from the established procedure prior to April 27, 1978, to the procedure enacted by Acts 1978, No. 594. It became apparent that in Baldwin County, as well as in other counties of the State, a conversion from one procedure into the other would require considerable time, so much, that to have suspended the trial of jury cases during all of that time would have seriously impaired the administration of justice, jeopardized the right of the accused in criminal prosecutions to a speedy trial and would have collided with the spirit and beneficent policy of Acts 1978, No. 594. In recognition of the impossibility of a compliance with the spirit of the new law, the Legislature by Acts 1978, 2d Ex.Sess., No. 14, § 1, on August 7, 1978, changed the date for emptying and refilling the box from July 31, 1978, to December 31, 1978.

The evidence as a whole on the hearing of the motion to strike the petit jury venire shows that the jury commission and its employees had pursued substantially the same procedures it had previously followed except as they were augmented by its efforts, and they were many, to bring about a compliance with Acts 1978, No. 594 and a complete compliance therewith as soon as practicable. Some claimed irregularities were emphasized by defendant, and we cannot say that some irregularities did not exist, but we find none that are materially significant or that constitute a violation of any constitutional right of defendant. The claimed irregularities are of the same nature as the claimed irregularities that were thoroughly considered and correctly determined, in our continuing opinion, by Judge DeCarlo in Oyarzun v. Pittman, supra. The motion of defendant to strike the petit jury venire or in the alternative to grant defendant a continuance was properly overruled.

The series of incidents that formed a basis for the prosecution in the instant case, as well as the prosecutions against nine other individuals, transpired during the last few days and nights of 1977, particularly but not exclusively December 30 and December 31. The indictment of the defendant herein was returned on January 11, 1978. The controlled substance to which the word "marihuana" in the indictment is referable, consisted of twelve bales thereof with a total weight of 4,450 pounds in the stage of "green vegetable material."

For a few days before December 31, 1977, there had been a joint investigation, covering the area of Baldwin County surrounding the place where the marihuana was found and seized, conducted by law enforcement officers of Alabama Bureau of Investigation, United States Customs Service, Alabama Beverage Control Board and Baldwin County Sheriff's Department. It pertained to suspected unlawful activities on water and on land between Ft. Morgan, Alabama, and its environs, and the Alabama-Florida boundary near its southern end, and resulted in the discovery and seizure, in the early daylight hours of January 31, of the marihuana, on board a vessel that had been traced upon its entry from the Gulf of Mexico to where it had been moored and abandoned by its occupants at Bear Point Marina. The vessel was consistently referred to in the evidence as a "sailboat" by the name of "Cher."

The Cher had been preceded at varying distances by a pleasure yacht by the name of "Island Girl" from the Ft. Morgan area to the area of the Bear Point Marina. It then went only a short distance farther in a generally easterly direction and stopped without coming to land. Soon thereafter, both of the vessels were boarded by some of the law enforcement officers. Those boarding the Cher found the marihuana; those boarding the Island Girl found no marihuana or other controlled substance. On the Island Girl were the defendant (appellant) and another man. They were both arrested on the occasion. On the same occasion, persons who had landed from the Cher were arrested; soon thereafter the marihuana was discovered, and all arrested, including defendant (appellant), were transported to the Baldwin County Jail.

On January 23, 1978, defendant filed a motion for the "suppression of evidence seized by officers without search warrant or warrant of arrest." The motion expressly embraced "papers, documents, vehicles, boats, controlled substances, marijuana, firearms, and any other evidence derived from the stake out, observation, investigation, and arrest of the Defendant on the charge of Possession of Marijuana, a felony." It appears that the motion was consolidated for the purpose of the hearing with motions to suppress filed by nine other defendants indicted in connection with the alleged possession of the marihuana, which hearing was conducted on February 14, 15, 16 and 17, 1978. Much of the evidence, consisting of a transcript of over 450 pages, pertained to appellant...