Mathis v. State, 1 Div. 139

CourtAlabama Court of Criminal Appeals
Citation52 Ala.App. 668,296 So.2d 755
Docket Number1 Div. 139
PartiesBuddy Herman MATHIS, alias v. STATE.
Decision Date14 August 1973

Alvin M. Binder, Jackson, Miss., R. P. Denniston, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

CATES, Presiding Judge.

False pretense: sentence, seven years imprisonment.

I

August 17, 1969 a hurricane came ashore in Mobile County. The Board of School Commissioners awarded a cost plus contract for school repairs to Mathis without public bidding.

According to the tendencies of the State's evidence, Mathis, with (or at the instigation of) an employee of the Board submitted false invoices from subcontractors. It was inferable that Mathis and this employee advised certain subcontractors and materialmen who had either done little or no work on particular schools, to inflate their bills and kick back to Mathis and his accomplice. In at least one instance they got blank invoice forms of a subcontractor, filled them out, and ran them through the Board's fiscal machinery to their profit.

Mathis defended, essentially, on a lack of scienter. He was then being harassed by creditors in other undertakings. This financial distraction, he said, kept him from realizing that he was participating in a fraudulent scheme. Mathis claimed, for example, that he thought that he was giving a year's maintenance guaranty on the roofs of the schools involved.

The State, in rebuttal, countered the thrust of Mathis's testimony by producing the putative accomplice who testified that Mathis participated in the decision to make false invoices and send them to the Board as bills.

This witness (R. 1818) testified without objection that the change from billing for damaged schools to also billing for schools not damaged was prompted by greed, '* * * partly mine and partly Mr. Mathis's.'

The conflict in the evidence was under our jurisprudence a classical case for the jury to resolve which they did with their verdict.

II

This case is a companion case to 1 Div. 217. In that case there was a claim that Mathis was awarded an earlier contract without competitive bids on the grounds of an emergency.

Thus, the hurricane having hit in August, by the 19th of December 1969 the Mobile Press Register reported an award of contracts without competitive bids on the grounds of an emergency. Then on the 4th of January 1970 there was an editorial in the Mobile Press Register, the morning newspaper, entitled 'Questions for Board.' This editorial made no call for criminal proceedings, but rather raised questions as to the motivation for ignoring the competitive bid law. On the 7th of January the newspaper published an article entitled 'Insurance Adjusters Probe School Hurricane Claims.'

On April 10, 1970 a grand jury indicted Mathis. In the instant case the indictment alleged a false pretense made to the Board of School Commissioners, Mobile County, regarding the repair of fifty-nine school buildings, purportedly damaged by the August hurricane.

On May 21, 1970 Mathis filed a motion for change of venue, alleging among other grounds the undue publicity he claimed resulting from various newspaper articles.

Mathis filed two amendments to his motion for change of venue and also filed a motion for continuance setting forth virtually the same grounds as set out in the motion for change of venue. These motions were overruled by the court after a hearing prior to trial. This hearing embraced a wide range of evidence, including stipulations as to the number of listeners to various radio stations, the viewing area of various television stations, the opinion of different witnesses as to whether or not Mathis could receive a fair trial in Mobile County and matters of similar import. A motion for continuance, as well as a motion for change of venue were denied. (R. 203)

We have carefully reviewed the newspaper clippings which were sent up as exhibits in addition to the testimony appearing in the record. We have examined these under the strictures of the opinion of the Supreme Court of the United States in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, and under further consideration of the Standards of Criminal Justice enunciated by the American Bar Association. Thus, under the Standards entitled Fair Trial and Free Press, § 3.2 provides:

'Change of Venue or Continuance.

'It is recommended that the following standards be adopted in each jurisdiction to govern the consideration and disposition of a motion in a criminal case for change of venue or continuance based on a claim of threatened interference with a right to a fair trial.

'(a) Who may request.

'Except as federal or state constitutional provisions otherwise require, a change of venue or continuance may be granted on motion of either the prosecution or the defense.

'(b) Methods of proof.

'In addition to the testimony or affidavits of individuals in the community, which shall not be required as a condition to the granting of a motion for change of venue or continuance, qualified public opinion surveys shall be admissible as well as other materials having probative value.

(c) Standards for granting motion.

'A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court's own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.

'(d) Same; time of disposition.

'If a motion for change of venue or continuance is made prior to the impaneling of the jury, the motion shall be disposed of before impandeling. If such a motion is permitted to be made, or if reconsideration or review of a prior denial is sought, after the jury has been selected, the fact that a jury satisfying prevailing standards of acceptability has been selected shall not be controlling if the record shows that the criterion for the granting of relief set forth in subsection (c) has been met.'

We believe that the newpaper publicity in this instance bears a notable distinction from that condemned in Sheppard v. Maxwell, supra, in that the writing in this case was based primarily upon what later developed to be the facts adduced in evidence. In other words, the writing was more or less objective in the light of the testimony developed at trial. It was reasonably free from any calls for action based on emotional subjective judgments.

There was relatively little publicity involving the defense attorney or the prosecution attorney except for some references to a political campaign engaged in by the District Attorney in which his opponent was one of the Public Defenders who later, upon successful election, prosecuted Mathis in the trial of the companion case, Mathis v. State, 52 Ala.App. 674, 296 So.2d 760. This publicity in nowise was to the prejudice of Mr. Mathis. Moreover, we would note that the trial of both of these cases was postponed from the call of the criminal docket immediately following the indictment until, in this case, the 9th of December 1970.

Thus, with respect to objective reporting we find the Court of Appeals of New York in People v. Di Piazza, 24 N.Y.2d 342, 300 N.Y.S.2d 545, 248 N.E.2d 412 saying:

'* * * Whether or not a change of venue should be granted rests in the sound discretion of the trial court (see, e.g., People v. Buchalter, 289 N.Y. 244, 45 N.E.2d 425; People v. Hyde, 149 App.Div. 131, 134, 133 N.Y.S. 780, Supra), and a number of cases have held that newspaper comment alone, even though extensive, 'does not establish inability to get a fair trial.' (People v. Broady, 195 Misc. 349, 350, 90 N.Y.S.2d 864; see People v. Hyde, 149 App.Div. 131, 133 N.Y.S. 780, Supra.) Moreover, the court's discretion will not be disturbed unless the newspaper articles are of such a sensational character as to excite local popular passion and prejudice so that the defendant will not be able to have the fair trial to which he is entitled.

'In the case before us, there was no such proof of passion or prejudice. Although though the community was small and the defendant's crime and the events leading up to it widely known, the pretrial newspaper accounts were surprisingly objective. The victim's funeral and the members of her family were sympathetically portrayed and the defendant's action was described as having caused a widespread reaction and aroused deep feeling. But there was very little written that could be said to be affirmatively hostile to him. * * *'

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24 cases
  • Whisenhant v. State, 1 Div. 333
    • United States
    • Alabama Court of Criminal Appeals
    • 23 Agosto 1988
    ...of whether or not to grant a change of venue is a matter generally left to the sound discretion of the trial court. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973), cert. denied, 292 Ala. 732, 296 So.2d 764 (1974); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, ......
  • Bracewell v. State, 4 Div. 981
    • United States
    • Alabama Court of Criminal Appeals
    • 31 Mayo 1983
    ...and objective and did not appeal for mob action or attempt to incite passion or prejudice against this appellant. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973), cert. denied, 292 Ala. 732, 296 So.2d 764 (1974); McLaren v. State, 353 So.2d 24 (Ala.Cr.App.), cert. denied, 353 So.2d 3......
  • Hammond v. State, 3 Div. 444
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    • 1 Marzo 1977
    ...ruling against the appellant in this regard. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973) cert. quashed 292 Ala. 732, 296 So.2d 764; Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975); Yeomans v. State, 55 Al......
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