Moulds v. State, 6 Div. 655

Citation426 So.2d 942
Decision Date28 December 1982
Docket Number6 Div. 655
PartiesDanny Eugene MOULDS v. STATE.
CourtAlabama Court of Criminal Appeals

George C. Lucas, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Appellant was indicted and convicted under Alabama Code § 13A-5-31(a)(2) (Supp.1977) for robbery or attempts thereof when the victim is intentionally killed. His punishment was fixed at life imprisonment without parole.

The sufficiency of the State's evidence is not raised on appeal. 1 Therefore, a lengthy recital of the facts is unnecessary. Briefly stated, Ms. Gail Nix, the victim was abducted by appellant around 7:18 p.m. on February 12, 1979, at the Green Springs branch of the First National Bank of Birmingham. The victim had just made a ten-dollar withdrawal from her checking account by using her "William Teller" card at the bank's automatic teller system. Bank records demonstrated that Ms. Nix's "William Teller" card was used twice more during the next two hours. Eighty dollars was withdrawn from Ms. Nix's checking account at the Century Plaza branch at 8:46 p.m. and ten dollars was withdrawn at the Center Point branch at 9:13 p.m.

Charles Edward Vanderford, who was with appellant when Ms. Nix was abducted, and appellant's wife, Christine Moulds, also used the victim's credit cards to purchase clothing at Penney's and Zayre's department stores that night. After making the clothing purchases, Vanderford and Mrs. Moulds returned to appellant's residence where they met appellant and the victim.

Appellant removed certain rings the victim was wearing, took her back to her car and instructed Vanderford and his wife to "follow him." Appellant drove the victim to the Graysville area on Highway 78, pulled off the side of the road and summarily shot her in the back of the neck with his pistol. Appellant later admitted to State witness George Curtis Burnett, Jr. that the victim "was sitting there begging me for her life" and "I blew her brains out."

I

Appellant's motion for change of venue was properly denied by the trial court. The trial court conducted an extensive voir dire examination of the prospective jurors and ascertained that many of the jurors had read about the case in the newspaper or had seen something about the case on television. When these prospective jurors were questioned further, individually, in the trial court's chambers, a large majority of the jurors stated that they could not remember any of the details about the pretrial publicity and that the publicity would not influence their verdict. The few prospective jurors who felt that the pretrial publicity would influence them were successfully challenged for cause. We have carefully reviewed this matter and find no error in the trial court's ruling. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

The granting of an accused's motion for change of venue rests within the sound discretion of the trial court and its ruling thereon will not be disturbed except for gross abuse. Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977). As this court stated in Anderson v. State, 362 So.2d 1296, 1298-1299 (Ala.Cr.App.1978):

"Section 15-2-20, Code of Alabama 1975, authorizes a defendant to have his trial removed to another county if he cannot receive a fair and impartial trial in the county in which the indictment is found. 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 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Annotation, 33 A.L.R.3d 17 (1970).

"On motion for a change of venue in a criminal case, the defendant has the burden of showing, to the reasonable satisfaction of the court, that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966); Godau v. State, 179 Ala. 27, 60 So. 908 (1913).

"Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

"Except in the situation where there is a showing of 'inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors', the trial court's primary responsibility in dealing with allegedly prejudicial pretrial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); United States v. Jones, 542 F.2d 186 (4th Cir.1976); McWilliams v. United States, 394 F.2d 41 (8th Cir.1968).

"In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the United States Supreme Court recognized that:

" 'Qualified jurors need not, however, be totally ignorant of the facts and issues involved.

" 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

" 'At the same time, the juror's assurances that he is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate 'the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.'

"Recently the Supreme Court affirmed the principles expressed in Murphy.

" 'Petitioner's argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of neither the crimes nor the putative criminal is sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a trial atmosphere utterly corrupted by press coverage.' Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977).

"The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination."

Applying the foregoing principles of law to the facts in this case, we find that the jury was impartial and adhered to its sworn duty to base its verdict upon the evidence adduced and the law as explained in the court's instruction. Bowen v. State, 274 Ala. 66, 145 So.2d 421 (1962); Anderson, supra. The fact that jurors knew of the case did not establish that at the time of empaneling they were biased against the defendant where they swore that their knowledge would not affect their judgment. Hale v. United States, 435 F.2d 737 (5th Cir.1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). Absent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the prospective jurors, there must be some showing of a connection between the publicity generated by the news articles, radio and television broadcasts, and the existence of actual jury prejudice. Anderson, supra.

II

The trial court did not abuse its discretion by requiring the prosecutor and defense counsel to begin striking the jury after both sides had been given approximately one hour to review the prospective juror lists. From the record we find the following:

"THE COURT: All right, Larry, we have got to get this jury, we can't just keep them sitting.

"MR. SHEFFIELD: I know that, Judge, and I'm not holding it up, but we just got the thing, we haven't even had time to look at it. I want the record to show that at the time we are being, I presume it's ordered, to strike this jury, that we have just got our strike lists in order and have not had time to study the jurors and study our notes as to the desirability of the jury and we do not feel that we are at this time adequately prepared or in anywise ready to strike the jury, and we object to being forced to strike a jury at this time due to the fact that we are unprepared to do so.

"THE COURT: Well, as far as your being forced, I'm not forcing anyone to strike in a certain fashion but both sides have had approximately an hour to go over the lists. That was done, and as a matter of fact, I originally gave thirty minutes and I have extended it for an additional thirty minutes and during that period of time I went back out and reseated the jury, reidentified them as to location as to where they were actually seated so I feel like the additional thirty minutes of time offered by ...

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