Moberg v. State, 1 Div. 105
Decision Date | 30 June 1980 |
Docket Number | 1 Div. 105 |
Parties | Gregory Ross MOBERG v. STATE. |
Court | Alabama Court of Criminal Appeals |
James E. Atchison and Virginia A. Johnston of Hess, Atchison & Stout, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
This is a consolidated appeal in two separate cases, in each of which appellant was convicted of a felony. In the Circuit Court they were numbered 78-1777 and 78-1778 and were consolidated for trial at the request of defendant. In one case he was charged with robbery of Elizabeth Fox and sentenced to imprisonment for life. In the second case he was charged with assault with intent to murder Robert Moore and sentenced to imprisonment for twenty years, the sentence "to run concurrent with the sentence" in the first case.
According to the undisputed evidence, on the night of September 3, 1978, Elizabeth Fox, while acting as manager of a Seven-Eleven Store in Mobile, was robbed of a large sum of money, by a man armed with a pistol. After robbing her, he shoved her into a back room, left her there and proceeded toward the front of the store. While doing so, he was met by Mobile Police Detective Robert Moore, who with another officer had been checking "night stores." Detective Moore was shot five times by the robber with the same pistol he had used in robbing Ms. Fox. Defendant was positively identified by Ms. Fox and others as the person, a white male, who had robbed Ms. Fox. Others positively identified him as the person who shot Detective Moore and fled from the scene.
Defendant testified that on the night of the robbery, and some of the day before, he had been with a friend by the name of Walter Colby and with another person by the name of "Zip." They left a bar where they had been playing pin ball. He said Colby and Zip discussed committing an armed robbery, but he let them know that he was afraid to do so. In some way he was separated from them for about fifteen minutes, and then he saw them when they were in the vicinity of the store that was robbed. He heard the shooting in the store and out. He saw Detective Moore when he was shot. He saw a man come out of the store and leave the scene. He continued as follows:
There was ample evidence to support the verdict of the jury as to the crime charged in each indictment. There is no contention to the contrary.
A major contention of appellant is that the trial court erroneously overruled a motion by defendant for a change of venue.
Defendant was arraigned and pleaded not guilty in each case on November 28, 1978, and the case was set for trial on January 25, 1979. Why the cases were not tried at that time is not shown by the record, but no objection by defendant is indicated by the transcript of the record. There is no indication that he desired an early trial. Between the date of his arraignment and the date of the first setting of the cases for trial, defendant filed a motion for discovery and other motions, as to which considerable time was probably taken. The record shows that on September 25, 1979, there was a hearing on "the motion for discovery." The record further shows:
"O.K."
Thereupon, the jury was selected for the trial of the cases. The court excused the jury from the courtroom a few minutes and proceeded to interrogate counsel as to whether anything should be done before the trial actually commenced. As a part of that colloquy, the record shows:
The motion for change of venue was filed on September 11, 1979. It alleged that "Defendant's case was highly publicized from the beginning and it involved both newspaper and television and radio coverage making the case a sensational one" and that it was further publicized when defendant "was allegedly involved in an escape with a number of other prisoners from the Mobile County Jail and his name and picture were widely publicized up to and through his return to the county jail." The motion also alleged that there was "recently a well publicized incident" as to a named police officer being killed "in the line of duty and the publicity and all forms of the news media stirred up deep feelings and emotions in both the City of Mobile and all of Mobile County." The motion was verified by the signature and oath of defendant.
Defendant failed to meet the requirements for a change of venue. All that he presented was his own contention stating a conclusion that he could not have a fair and impartial trial in Mobile County by reason of the large amount of publicity with reference to his cases, other conduct on his part and an unrelated case involving the death of a police officer killed in the line of duty.
The existence of widespread publicity does not in and of itself indicate that a defendant will not get a fair trial. McLaren v. State, Ala.Cr.App., 353 So.2d 24, cert. denied, 353 So.2d 35 (1977); Peoples v. State, Ala.Cr.App., 338 So.2d 515 (1976); Turk v. State, Ala.Cr.App., 348 So.2d 878 (1977); Jenkins v. State, Ala.Cr.App., 339 So.2d 133, cert. denied, 339 So.2d 137 (1976); Speigner v. State, Ala.Cr.App., 367 So.2d 590, cert. denied, 367 So.2d 597 (1979).
This is not a case, in our opinion, in which there is any need to emphasize the breadth of the discretion of the trial court, and we merely...
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