Morrison v. State

• Citation: 601 So.2d 165
• Parties: James Edward MORRISON v. STATE of Alabama. CR 90-1083.
• Decision Date: 27 March 1992
• Court: Alabama Court of Criminal Appeals

Page 165

601 So.2d 165

James Edward MORRISON v. STATE of Alabama.

CR 90-1083.

Court of Criminal Appeals of Alabama.

March 27, 1992.

Rehearing Denied May 1, 1992.

Certiorari Denied July 24, 1992

Alabama Supreme Court 1911307.

F. David Lowery, Russellville, for appellant.

James H. Evans, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, James Edward Morrison, was convicted of the murder of Bobby Smith, Jr., and was sentenced to imprisonment for life. Seven issues are raised in this appeal of that conviction.

I.

We reject the appellant's contention that his challenge for cause of a veniremember should have been granted.

During voir dire of the jury venire, the prosecutor asked whether there was "[a]nyone else who for any reason would not be able to [put aside any opinions, feelings, or information heard about the case and decide the case based on the evidence and the law] or feels that we should know something about you before we strike this jury?" R. 350. No veniremember responded to this question. A discussion was then had out of the presence of the venire concerning three veniremembers who had previously asked to be excused for medical or personal reasons. When these three veniremembers had been excused and proceedings were resumed in the presence of the venire, the following occurred:

"MR. HARGETT [District Attorney]: ... Did somebody start to raise their hand on my last question about any special reason?

"[Number 31]: I have talked with [the victim's] family where I work.

"MR. HARGETT: Do you know something about the facts in this case that would cause you to have some preconceived ideas about the guilt or innocence?

"[Number 31]: No, sir.

"MR. HARGETT: Could you decide the case fairly based on the evidence as comes from the witness stand and the law given to you by the Court without regard for anything you heard from the [victim's] family?

"[Number 31]: Yes." R. 354-55.

During defense counsel's voir dire of the venire, the following occurred:

"MR. LOWERY [Defense Counsel]: Are any of you friends or acquaintances with either Mr. or Mrs. Smith [the victim's parents]?

"[Number 31]: Through my work.

"MR. LOWERY: Would that acquaintance through your work in any way affect your ability to sit as a juror on this case and make a fair and impartial decision because I can tell you up front based upon what we expect the evidence to show I'll ask you to find Eddie Morrison not guilty of the charge.

"[Number 31]: I don't think so.

"MR. LOWERY: If you were chosen to serve as a juror on this case and based upon what the law and evidence show you did, in fact, find Eddie Morrison not guilty, would you feel that you owed any of the Smith family an explanation after the trial, [Number 31]? I know it's a tough question. Do you think anything about sitting on the jury in this case might affect your ability to be completely fair and impartial?

"[Number 31]: I don't know.

"MR. LOWERY: You don't know?

"[Number 31]: No." R. 361-62.

No further questions were propounded to Number 31 on this matter by either the prosecutor, defense counsel, or the trial judge.

At the conclusion of the voir dire, defense counsel challenged Number 31 on the ground that "[s]he's acquainted with the Smith family." R. 391. This challenge was denied. After the jury was struck, but before it was sworn, defense counsel stated, "Once again I except to the Court's denying my challenge for cause to juror number 31 and state for the record before the jury is empaneled I'm not satisfied with the venire." R. 393.

"[T]he mere fact that a prospective juror is personally acquainted with the victim [or his family] does not automatically disqualify a person from sitting on a criminal jury." Brownlee v. State, 545 So.2d 151, 164 (Ala.Cr.App.1988), affirmed, 545 So.2d 166 (Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989). See Howard v. Davis, 815 F.2d 1429, 1431 (11th Cir.), cert. denied, 484 U.S. 864, 108 S.Ct. 184, 98 L.Ed.2d 136 (1987). Cf. Engineers of the South, Inc. v. Goodwin, 366 So.2d 673, 674 (Ala.1978) (the fact that a veniremember is acquainted with an individual involved in the litigation does not, in and of itself, disqualify the veniremember); Grandquest v. Williams, 273 Ala. 140, 146, 135 So.2d 391, 395 (1961) (same). Instead, the test is "whether the [prospective] juror's acquaintance with [the victim] or relative is such that it would result in probable prejudice." Vaughn v. Griffith, 565 So.2d 75, 77 (Ala.1990), cert. denied, 498 U.S. 1097, 111 S.Ct. 987, 112 L.Ed.2d 1072 (1991). Accord Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1976); Grandquest v. Williams, 273 Ala. at 146, 135 So.2d at 395.

The qualification of prospective jurors rests within the sound discretion of the trial judge. Ex parte Cochran, 500 So.2d 1179, 1183 (Ala.1985); Alabama Power Co. v. Henderson, 342 So.2d at 327. A judge's decision on a challenge for cause "is entitled to great weight" and will not be disturbed on appeal "unless clearly erroneous, equivalent to an abuse of discretion." Brownlee v. State, 545 So.2d at 164. In reviewing a trial court's decision on a challenge for cause, "this court will look to the questions propounded [to] and the answers given by the prospective juror to see if [the trial court's] discretion was properly exercised." Alabama Power Co. v. Henderson, 342 So.2d at 327. Accord Ex parte Cochran, 500 So.2d at 1183-84. These questions and answers must be viewed as a whole and not in isolation. See Ex parte Rutledge, 523 So.2d 1118, 1120 (Ala.1988); Ex parte Beam, 512 So.2d 723, 724 (Ala.1987).

In this case, the prosecutor's specific questions to Number 31 were clearly aimed at determining whether she had any knowledge of the facts of the case that would affect her ability to be impartial. In contrast, defense counsel's questions were aimed at determining whether Number 31's relationship with the victim's family would affect her ability to be impartial. While Number 31's answers to the prosecutor's questions unequivocally established that she did not have any knowledge of the facts in the case, her answer to defense counsel's last question regarding the effect of her relationship with the victim's family was certainly ambiguous.

This Court is well aware of the principle that "[o]nce a [prospective] juror makes an initial statement that is vague, ambiguous, equivocal, uncertain or unclear or that shows confusion, it is the trial judge's function to question the juror further, so as to ascertain whether the juror can be impartial." Knop v. McCain, 561 So.2d 229, 234 (Ala.1989). See also Wood v. Woodham, 561 So.2d 224, 227 (Ala.1989); England v. State, 601 So.2d 1108 (Ala.Cr.App.1992); Hunter v. State, 585 So.2d 220, 222 (Ala.Cr.App.1991). We find that this principle does not apply in this case because, although the meaning of the veniremember's response was uncertain, it was uncertain in a manner distinguishable from the responses in the above cases. Here, the veniremember's response did not necessarily indicate that she was uncertain as to whether her relationship with the victim's family would affect her ability to be impartial. Significantly, in his request to strike Number 31 for cause, the appellant did not specifically allege that her responses regarding the effect of her relationship with the victim's family were equivocal as to whether that relationship would affect her ability to be impartial. His objection was based only upon the ground that "[s]he's acquainted with the Smith family." R. 391.

When asked if her "work" relationship with the victim's family would affect her ability to be impartial, Number 31 replied, "I don't think so." We do not understand that response to mean that Number 31 did not know whether or not she could return an impartial verdict.

Number 31 responded, "I don't know," to defense counsel's next question. When considered in the context of the question and her previous answers, this response could mean, as the appellant argues, that she did not know whether she could be completely fair and impartial as a juror. However, it could also mean that she did not know whether she thought anything about sitting on that particular jury which might affect her ability to be completely fair and impartial. Her response could also be understood as meaning that she did not know of anything that would affect her ability to be a fair and impartial juror. Furthermore, we note that defense counsel's last question, which elicited the response, "I don't know," was actually two questions--one concerning whether she would feel the need to explain an acquittal, if there was one, to the victim's family, and the other concerning whether "anything" would affect her ability to be fair and impartial--and we cannot be certain which question Number 31 was answering.

As indicated, defense counsel's questions on this subject were not as clear and straightforward as they should have been. Those questions themselves contribute to the uncertainty we have in determining the meaning of Number 31's responses. We note that when he questioned other veniremembers about their friendship or acquaintance with the assistant district attorney, defense counsel asked only whether that relationship would affect their ability to decide the case. Decisions regarding "[t]he clarity of the questions propounded" are also within the discretion of the trial court. Morris v. Zac Smith Stationery Co., 274 Ala. 467, 470, 149 So.2d 810, 813 (1963). As the United States Supreme Court has observed:

"It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination techniques that frequently are employed ... [during voir dire].... Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or...