O'Leary v. State, 1 Div. 994

• Court: Alabama Court of Criminal Appeals
• Citation: 417 So.2d 214
• Docket Number: 1 Div. 994
• Parties: Daniel P. O'LEARY v. STATE.
• Decision Date: 06 May 1980

Page 214

417 So.2d 214 Daniel P. O'LEARY
v.
STATE. 1 Div. 994. Court of Criminal Appeals of Alabama. May 6, 1980. Rehearing Denied May 27, 1980.

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.

TYSON, Judge.

Daniel P. O'Leary was indicted by the grand jury for the offense of possession of marijuana. His jury trial resulted in a conviction and sentence of fifteen years imprisonment in the penitentiary.

The dispositive issue on this appeal is whether or not the appellant was ever arraigned on the charge for which he was indicted and convicted. From our examination of the record we conclude he was not so arraigned and, therefore, reverse and remand this cause for a new trial.

Appellant was called for arraignment on January 23, 1978, but was not present. There is no dispute as to this date. At that time defense counsel moved the court to postpone arraignment until the day of trial so that appellant, who resided out of state, would not be forced to make a long trip solely for the purpose of arraignment. The court granted this motion (see Supp. E, pp. 59-60).

The trial of the case began on July 31, 1978, and the appellant was subsequently found guilty by the jury. The original minute entry in this cause reads as follows (Vol. IV, p. 708):

Page 215

"JURY & VERDICT

"8/2/78; This day in open Court came the State of Alabama by its District Attorney, and the Defendant in his own proper person, and with his attorney, and the trial of this case having been regularly set for this day, thereupon, in open Court on this day in the presence of the District Attorney, defendant's attorney, and the defendant, came a jury of good and lawful men and women, to-wit: Morgan J. Odom, and eleven others, who, having been duly impanelled and sworn according to law, who, having heard the evidence, and the charge of the Court, upon their oaths, in open court on this day in the presence of the District Attorney, defendant's attorney and the defendant, do say: 'WE, THE JURY, FIND THE DEFENDANT GUILTY.'

"Thereupon in open court on this day the defendant in the presence of his attorney being asked by the Court if he had anything to say why the judgment and sentence of the law should not be passed upon him, replied 'he had not.' It is therefore considered and adjudged by the Court that the defendant is guilty of the offense of Possession of Controlled Substances, and that the defendant be and he is hereby sentenced to a period of Fifteen (15) years in the State Penitentiary.

"Sentence suspended pending appeal and appearance bond set in the amount of One Hundred Thousand Dollars ($100,000.00)."

On January 29, 1979, a motion to correct or modify the record was filed by the State of Alabama (Supp. E, pp. 90-91). The motion requested the trial court to correct the record by adding an arraignment of the appellant to the minute entry. On February 12, 1979, a hearing on the motion was conducted.

Morgan Odum, a resident of Foley, Alabama, testified that he was a juror at appellant's trial on July 31, 1978. He stated that he remembered seeing the prosecutor read the charges to the appellant and that he remembered that the appellant plead not guilty thereto. On cross-examination, Mr. Odum testified that he had been on juries in two previous criminal trials and he saw the defendants in both trials arraigned immediately prior to trial. He recalled that the appellant was called upon to plead prior to voir dire examination of the jury. He stated he never discussed appellant's alleged arraignment with the district attorney until a few minutes before the hearing that day.

Thomas Benton, Sheriff of Baldwin County, testified that he recalled that the appellant was arraigned the morning of his trial and that the court reporter was not present at the time. He stated that his recollection of the sequence of events on the morning of trial was as follows: First, the sheriff called the roll of the jury, then the judge sounded the docket. According to the sheriff, when the O'Leary case, this instant cause, was sounded, the judge called the appellant before him and held the arraignment. Thereafter, the jury was struck and the case proceeded to trial.

Bobby Stewart, Chief Criminal Investigator for Baldwin County, testified that he was present in court on the morning of July 31, 1978, and remembered the appellant's being arraigned. He stated that after the indictment was read the judge instructed him to go find the court reporter, who was absent from the courtroom at that time. On...