Mathis v. State, In re
| Decision Date | 09 May 1974 |
| Citation | 292 Ala. 732,296 So.2d 764 |
| Parties | In re Buddy Herman MATHIS, alias v. STATE. Ex parte Buddy Herman Mathis. SC 555, SC 556. |
| Court | Alabama Supreme Court |
Petitions for writ of certiorari to Court of Criminal Appeals.
Alvin M. Binder, Jackson, Miss., and R.P. Denniston, Mobile, for petitioner.
William J. Baxley, Atty.Gen., and Joseph G.L. Marston, III, Asst.Atty.Gen., for the State.
Petitions of Buddy Herman Mathis for certiorari to the Court of Criminal Appeals to review and revise the judgments and decisions of that court in Mathis v. State [1973] 52 Ala.App. 674, 296 So.2d 760, and Mathis v. State [1973] 52 Ala.App. 668, 296 So.2d 755.
On preliminary examination, the writs of certiorari were issued and the causes were set down for oral argument. Upon further consideration, after having heard the oral arguments and having studied the briefs and the decisions of the Court of Criminal Appeals, we are now of the opinion that the writs are due to be quashed as having been improvidently granted.
Writs of certiorari quashed.
HEFLIN, C.J., not sitting.
I concur in the Per Curiam opinion of the majority, but I wish to add the following observations. The dissent would reverse petitioner's conviction on the ground that the trial court committed reversible error in refusing to grant the motion for change of venue because of pre-trial publicity, despite the admission that "the reporting was more or less objective in light of the testimony developed at trial," and in the face of an express finding by the Court of Criminal Appeals that the "publicity in nowise was to the prejudice of [defendant]." [Emphasis supplied.]
To reach this result, in my judgment, would represent a departure from well-established and well-founded principles regarding right to fair trial.
As I understand it, the dissenting opinion purports to adopt, as Alabama law, the rationale of a federal circuit court in Doggett v. Yeager, 472 F.2d 229 (3rd Cir.1973) and § 3.2(c) of the ABA Project on Minimal Standards for Criminal Justice and would hold that a defendant is denied a fair trial anytime there is extensive pre-trial publicity, irrespective of its objective and factual nature. Apparently, prejudice is conclusively presumed from the fact of the mere presence of extensive pre-trial publicity of any character.
The essence of the right to fair trial is the right to an impartial jury. Alabama Constitution 1901, Art. I, § 6. See also Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Clearly, a juror does not necessarily lose his impartiality merely by residing in an area in which there has been extensive pre-trial publicity regardless of its character.
Heretofore, it has been held sufficient if the juror can lay aside any impression or opinion he might have had and render a fair verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). It is my judgment that such a rule is required in our modern society in which mass media is so pervasive. Criminal prosecutions, especially those involving crimes of a spectacular nature, will naturally be considered newsworthy by the media and will inevitably generate a certain amount of publicity.
If a change of venue or a continuance is to be mandated in every instance where there is extensive pre-trial publicity being disseminated, it will become necessary to grant a change of venue or continuance in virtually all criminal prosecutions of any notoriety. Such a rule will virtually eviscerate the right to "a speedy, public trial, by an impartial jury of the county or district in which the offense was committed ..." guaranteed by both the Federal and Alabama constitutions. See Alabama Constitution of 1901, Art. I, § 6.
The Federal Constitution requires a change of venue only "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial ..." Sheppard v. Maxwell, 384 U.S. 333, 362-363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966).
While there may be disagreement as to what constitutes proof of a "reasonable likelihood" that a fair trial cannot be had, I believe the accepted test is that expressed by our own Fifth Circuit Court of Appeals in Hale v. United States, 435 F.2d 737 (5th Cir., 1970). In Hale the Fifth Circuit held that no reversible error arose because of a trial court's refusal to grant a continuance or to declare a mistrial on the grounds of pre-trial publicity in the absence of demonstrable jury prejudice or highly pervasive, prejudicial publicity. This standard is equally applicable to a trial court's refusal to grant a motion for change of venue.
I do not consider that the standard applied in Doggett or that recommended by the ABA Project differs materially from the Hale test. The ABA Project provides for change of venue "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." (Emphasis supplied.) Doggett also requires that the material disseminated be prejudicial. See 472 F.2d 229 at 238. Doggett merely holds that if the defendant proves widespread dissemination of prejudicial material, he need not prove actual prejudice or even that the prejudicial material in fact reached the jury.
In the instant case, the Court of Criminal Appeals found that the "publicity in nowise was to the prejudice of [defendant]." While this may be a "legal conclusion" as maintained by the dissent (or at least a mixed question of law and fact), this "conclusion" was based upon findings of fact by the Court of Criminal Appeals that the reporting was "factual," "truthful," "objective," and "reasonably free from any calls for action based upon emotional subjective judgments."
As we have stated many times, the Court of Criminal Appeals is a court of final appellate jurisdiction and for the Supreme Court to evaluate its findings and conclusions based upon the evidence (as opposed to its statements of law) "*** would run counter to the oft-stated rule to the effect that this court [Supreme Court] on certiorari to review an opinion and judgment of an intermediate appellate court does not review the evidence as contained in the record to determine for ourselves what were the facts of the case." Humphrey v. Boschung, 287 Ala. 600, 253 So.2d 769 (1971).
Therefore, where, as here, there has been no showing of any actual prejudice nor any showing that the pre-trial publicity (although admittedly extensive and widespread) was anything other than "factual," "truthful," "objective," and "reasonably free from any calls for action based upon emotional subjective judgments" (Mathis v. State [1973] 52 Ala.App. 674, 296 So.2d 760, and Mathis v. State [1973] 52 Ala.App. 668, 296 So.2d 755), I am unwilling to presume that the defendant was prejudiced.
And, while Sheppard v. Maxwell, supra, may place upon appellate courts "the duty to make an independent evaluation of the circumstances" surrounding cases involving pervasive pre-trial publicity, the Court of Criminal Appeals already has made such an evaluation in this case. See Mathis v. State [1973] 52 Ala.App. 668, 296 So.2d 755. The conclusion of that court was that the evidence "in the instant record did not support the defendant's motion for either a further continuance or a change of venue."
Accordingly, I agree that the writ should be quashed as improvidently granted.
This appeal is the consolidation of two cases which contain similar questions of law and fact. Buddy Herman Mathis, the appellant, was tried and convicted in two separate trials by the Circuit Court of Mobile County of obtaining money by false pretenses. One case involved kitchen equipment in four Mobile County Schools. The other case involved the removal of debris and repairs to Mobile County schools damaged by Hurricane Camille. The convictions were upheld by the Court of Criminal Appeals. We granted certiorari on certain constitutional grounds, i.e., fair trial and free press, which is one of the most viable legal issues of the day. 1
The question presented is whether or not the trial Court erred in refusing to grant the motion for change of venue because of adverse pre-trial publicity. The majority opinion quashes the writs as improvidently granted. Implicit in this ruling, and as expressed in the concurring opinion, is the conclusion that the "blinder" rule 2 effectively prevents our review of the opinions of the Court of Criminal Appeals. I do not disagree with the "court of last resort" premise on which this rule is based, but I strongly disagree with the majority's application of that rule in the instant cases for two basic reasons: 1. The finding by the Court of Criminal Appeals that "This publicity in nowise was to the prejudice of Mr. Mathis" is not a true finding of fact; it is instead a legal conclusion which is indeed the ultimate legal issue treated by that Court as dispositive of these appeals. 2. We are creating the enigma whereby this Court is inviting itself to be reviewed by the United States Supreme Court on a constitutional question that this Court itself has not reviewed.
The "court of last resort" premise, in my opinion, is given full expression by the narrow and limited grounds on which writs of certiorari may be granted (Rule 39). Once the writ is granted, however, which certifies the record of the entire proceedings to this Court, I have never been able to find any valid basis--legal or logical--for the rule requiring this Court to wear blinders and to ignore what that record reveals. 3
I would grant the writ, reverse and...
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Whisenhant v. State, 1 Div. 333
... ... denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983) ... "The determination 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, 292 Ala ... Page 224 ... 720, 289 So.2d 644 (1974); Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973); Turner v ... ...
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Bracewell v. State, 4 Div. 981
... ... The newspaper articles presented in support of appellant's motion were factual 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 35 (Ala.1977); Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983). As is generally the case with venue questions on appeal, we ... ...
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Hammond v. State, 3 Div. 444
... ... The voir dire examination of the jury panel shows no prejudicial effect upon the jury resulted from the publicity. We find no error on the part of the trial court in its 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 Ala.App. 160, 314 So.2d 79 (1975) ... Appellant contends that the trial court erred in refusing to grant his ... ...
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Anderson v. State
... ... Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973). However the existence of widespread publicity alone does not indicate that a defendant will not get a fair trial. The law focuses on the impartiality of the trial jury. Turk v. State, 348 So.2d 878 (Ala.Cr.App.1977); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755, cert. quashed, 292 Ala. 732, 296 So.2d 764 (1973), cert. denied, 419 U.S. 1106, 95 S.Ct. 777, 42 L.Ed.2d 802 (1975). Actual prejudice directed toward the accused resulting from the extensive publicity must be shown. Botsford v. State, 54 Ala.App. 482, 309 ... ...