Limbaugh v. State
| Decision Date | 01 March 1991 |
| Citation | 581 So.2d 5 |
| Parties | James Franklin LIMBAUGH, Jr. v. STATE. CR 90-208. |
| Court | Alabama Court of Criminal Appeals |
Steven A. Adcock and Jonathan Adams, Talladega, for appellant.
Don Siegelman, Atty. Gen. and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.
James Franklin Limbaugh, Jr., was indicted for the offense of murder, in violation of § 13A-6-2, Code of Alabama 1975. The jury found him guilty as charged in the indictment, and he was sentenced to life imprisonment. On appeal, this Court reversed the conviction and remanded the case for further proceedings. Limbaugh v. State, 549 So.2d 582 (Ala.Cr.App.1989). On remand, Limbaugh was arraigned again and he entered a plea of not guilty. A jury was struck, and at the conclusion of the trial the jury found Limbaugh guilty as charged in the indictment, and he was sentenced to life imprisonment. He presents five issues on this appeal.
Limbaugh contends that the trial court erred in denying his motion for mistrial on the ground that the court abused its discretion in replacing with an alternate a juror whom the prosecution had struck but who had mistakenly been placed on the panel.
In striking Limbaugh's jury, both the State and defense counsel used peremptory challenges until a jury of 12 principal jurors and two alternate jurors remained. It is undisputed that the State struck juror number 29 and that juror number 26 was selected to be on the panel.
During opening argument, the prosecutor discovered that juror number 29, who had been struck by the State, was sitting on the jury, while juror number 26, who had been selected for the jury, was not sitting on the jury. The prosecution immediately brought this discovery to the court's attention, and Limbaugh moved for a mistrial on the ground that there was a defect in the jury panel that was selected and jeopardy had attached. The State informed the Court that juror number 26 was not now available because she had subsequently been selected on another case that was in progress. The court denied the motion for mistrial and replaced juror number 29 with an alternate juror.
"A mistrial should not be granted unless there is a manifest necessity to discharge the jury or unless the ends of justice would otherwise be defeated." Rocker v. State, 443 So.2d 1316, 1319 (Ala.Cr.App.1983). The trial court is, moveover, allowed broad discretion in deciding whether a ground for a mistrial exists. Id.
Section 12-16-100(c), Code of Alabama 1975, provides for the use of an alternate juror "if it becomes necessary for an alternate to replace a principal juror." "The use of alternate jurors under this salutary statute permits the court to avoid a costly and burdensome mistrial that would otherwise be required when a juror during the trial becomes unable to perform his duties satisfactorily." Rocker, supra, 443 So.2d at 1320.
In the present case, we find no error in the ruling of the court discharging juror number 29 as a principal juror in favor of the first alternate under the provisions of § 12-16-100(c). Subsection (c) has been construed to allow an alternate juror to replace an absent juror who has received unauthorized communications. See Calhoun v. State, 530 So.2d 259, 264 (Ala.Cr.App.1988), and Rocker, supra, 443 So.2d at 1320, respectively. Under the circumstances of this case, in which juror number 26 was no longer able to serve on the panel, we construe § 12-16-100(c) to permit the Court to rectify an administrative error by replacing an unauthorized principal juror with an alternative. We, therefore, hold that the trial court did not abuse its discretion in replacing juror number 29 with an alternative, and, accordingly, Limbaugh's motion for mistrial was properly denied.
Limbaugh contends that the trial court erred in denying his motion for mistrial on the ground that the State failed to provide Limbaugh with potentially exculpatory material in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We disagree.
Immediately prior to trial, defense counsel requested that the State provide Limbaugh with a copy of the grand jury testimony of State witness William Helton. The State complied with that request, and the court, at defense counsel's request, then gave defense counsel an opportunity to review the testimony for potentially exculpatory material. Prior to opening statements, the Court asked defense counsel if he had had time to read the testimony, and defense counsel assured the court that he had had ample time to read the testimony.
In the middle of the trial, defense counsel moved for a mistrial on the ground that it appeared from the grand jury transcript that there might be some exculpatory material that the State might have in its possession which was not provided to defense counsel pursuant to the discovery order.
The pertinent grand jury testimony is as follows:
"
Although Limbaugh admits that the grand jury testimony is not exculpatory, because Helton denies making the statement, he nevertheless contends that the testimony implies that the State may have in its possession exculpatory material such as a statement from Helton to the prosecutor or the prosecutor's investigators that Limbaugh would not be prosecuted because he was a "Limbaugh."
The prosecutor denied the existence of any such statement but offered to allow Limbaugh a continuance to search through his files and interview his investigators for any potentially exculpatory material. Defense counsel declined the offer for a continuance, and the trial court denied its motion for a mistrial.
"In order to establish a Brady violation, appellant must prove: '(1) The prosecution's suppression of evidence; (2) The favorable character of the suppressed evidence for the defense; [and,] (3) The materiality of the suppressed evidence.' " Knight v. State, 478 So.2d 332, 335 (Ala.Cr.App.1985) (quoting Monroe v. Blackburn, 607 F.2d 148, 150 (5th Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2929, 64 L.Ed.2d 816 (1980)). "Undisclosed evidence is material under the Brady rule only if it is reasonably probable that the outcome of the trial would have been different if it had been discovered," Spellman v. State, 500 So.2d 110, 115 (Ala.Cr.App.1986).
In the case at bar, Limbaugh has failed to show that any exculpatory evidence existed, much less that he suffered any prejudice by an alleged suppression thereof. Limbaugh admitted that Helton's grand jury testimony was not exculpatory, because Helton denied making the statement that he did not think Limbaugh would be prosecuted. Limbaugh not only failed to establish the existence of any "statements" of Helton to the contrary, but also failed to establish that any such alleged "statements" of Helton were deemed exculpatory to Limbaugh. Hence, the trial court properly denied Limbaugh's motion for mistrial on this ground.
Limbaugh contends that the trial court erred in denying his motion for a new trial on the ground that a juror failed to properly and correctly respond to a question during voir dire examination of the jury.
During voir dire examination of the jury, the following exchange occurred:
The record reflects that during voir dire the only juror who responded to the question was Mr. Cash.
In his motion for new trial, Limbaugh alleged that another juror, Mary E. Dale, had a daughter who was killed in a car bomb explosion and, therefore, that Mrs. Dale had failed to properly answer the voir dire questions set out above.
A hearing was held on Limbaugh's motion, at which Mrs. Dale testified that what had happened to her daughter had had no effect whatsoever upon her reaching a true and fair verdict in this case. Mrs. Dale testified, moreover, that she understood defense counsel's question to be whether she had ever been the victim of any type of misdemeanor or felony where a case was actually made. She testified that because no criminal case was ever brought as a result of her daughter's death, she did not answer the question. Based upon this testimony, the trial court denied Limbaugh's motion for a new trial on this ground.
It is axiomatic that the decision of the trial court to deny a motion for new trial will not be disturbed on appeal unless there is a clear showing of abuse of discretion. Nichols v. State, 500 So.2d 92, 96 (Ala.Cr.App.1986):
Knighten v. State, 402 So.2d 363, 364 (Ala.Cr.App.1981).
It is clear from the record that the jury did not understand defense counsel's initial question and that defense counsel clarified his initial question by asking the jurors whether they had ever been a...
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