Neal v. State

• Decision Date: 22 August 1997
• Citation: 731 So.2d 609
• Parties: John Lionel NEAL v. STATE.
• Court: Alabama Court of Criminal Appeals

731 So.2d 609

John Lionel NEAL v. STATE.

CR-93-1208.

Court of Criminal Appeals of Alabama.

August 22, 1997.

Rehearing Denied March 20, 1998.

W. Donald Bolton, Jr., Foley, for appellant.

Bill Pryor, atty. gen., and Gail Hampton, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, John Lionel Neal, was convicted of the capital offense of murder committed during the course of a burglary, see § 13A-5-40(a)(4), Ala.Code 1975. The jury, by a vote of 10-2, recommended that the appellant be sentenced to death; the trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

On February 16, 1987, Mrs. Wilma Underwood was found dead in the kitchen of her house in Foley. Underwood's house had been ransacked, and her television set and wedding band were missing. Her purse was on the couch, and its contents were strewn on the floor. An autopsy revealed that Underwood had been beaten to death. The cause of death was listed as blunt force to the head, neck, and chest. The appellant's fingerprints were found on a number of items in Underwood's house. After the appellant became a suspect in Underwood's murder, law enforcement officials located him in Canada, and he was arrested and was returned to Alabama to face charges for the crime. The appellant's wife subsequently contacted law enforcement officials and told them that the appellant had stored a television set taken from Underwood's house in a travel trailer in Covington. Louisiana, where the appellant was residing around the time of the offense. Officers obtained and executed a warrant to search the travel trailer, and found Underwood's television set inside. A cellmate of the appellant's testified that the appellant admitted to him that he had broken into Underwood's residence, that he had killed her so she could not identify him, and that he had taken her television set to the travel trailer in Louisiana. A psychologist who had interviewed the appellant testified that the appellant had told him that he entered Underwood's house through a back window with the intention of stealing items from the house.

Following a trial in April 1990, a jury found the appellant guilty of capital murder for the killing of Underwood; the trial court subsequently sentenced him to death. However, in Neal v. State, 612 So.2d 1347 (Ala.Cr.App.1992), this court reversed the appellant's conviction after finding that the state had violated the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in its use of peremptory strikes against potential jurors. After a second trial in March 1994, the appellant was again convicted of capital murder; he was again sentenced to death. This appeal followed.

I

The appellant contends that the trial court erred in denying his motion seeking a change of venue because of pretrial publicity.

"A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case. The trial court has the best opportunity to evaluate the effects of any pretrial publicity on the community as a whole and on the individual members of the jury venire. The trial court's ruling on a motion for a change of venue will be reversed only when there is a showing that the trial court has abused its discretion. Nelson v. State, 440 So.2d 1130 (Ala.Cr.App. 1983)."

Joiner v. State, 651 So.2d 1155, 1156 (Ala. Cr.App.1994).

In his brief to this court, the appellant sets out in detail specific testimony and evidence presented at a hearing on the motion for a change of venue made during his first trial. Before his second trial, which was conducted three years later, the appellant "updated" this information and resubmitted it at the hearing on his motion for a change of venue. The appellant also introduced evidence of various local television and radio news reports and newspaper articles that appeared before his second trial.¹ The appellant argues that he could not receive a fair and impartial trial in Baldwin County due to the continued and extensive pretrial publicity before his second trial.

In Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985), the Alabama Supreme Court set forth the standard that a trial court should use in deciding whether to grant a motion for a change of venue based upon pretrial publicity:

"In order to grant a motion for change of venue, the defendant must prove that there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Franklin v. State, 424 So.2d 1353 (Ala. Cr.App.1982). Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue. Anderson v. State, 362 So.2d 1296, 1298 (Ala.Cr.App.1978). As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961):

"`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....'

"The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975). Thus, `the proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.' Anderson v. State, 362 So.2d 1296, 1299 (Ala.Cr.App.1978)."

479 So.2d at 80.

Here, the trial court conducted an extensive voir dire examination of the entire jury venire as a group and then of each prospective juror individually. The prosecuting attorney and the appellant's attorney were given an opportunity to question the prospective jurors regarding their knowledge of the facts surrounding the case based on what they had learned from the media coverage. Some of the jurors recalled that a murder had occurred in Foley in 1987, but they could not remember any specific facts surrounding the murder. Those jurors who could remember details of the crime either were struck for cause or were allowed to remain on the venire because they stated that they would not be prejudiced in any way by their knowledge of the case.

The appellant argues that prospective jurors who stated that they had no prior knowledge of the case did so solely to increase the likelihood that they would serve on the jury. However, after reviewing the voir dire testimony in the record, we do not agree. As indicated, several prospective jurors admitted to having prior knowledge of the murder. The appellant's attorney questioned those jurors regarding their prior knowledge but failed to make any motion that the trial court strike them for cause. As this court stated in Grayson, supra, the defendant is not entitled to jurors who are totally ignorant of the facts and issues involved in the case or who have never entertained a preconceived notion as to the defendant's guilt or innocence. Grayson, 479 So.2d at 80. We also note that the appellant's second trial took place approximately seven years after the murder. The passage of time cannot be ignored as a factor in bringing objectivity to a case in which there has been extensive pretrial publicity. Holladay v. State, 549 So.2d 122 (Ala.Cr.App.1988), aff'd, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989). The appellant has failed to prove any actual prejudice against him from pretrial publicity. See Grayson, 479 So.2d at 80.

As noted above, the appellant submitted numerous newspaper articles to support his contention that the pretrial publicity had saturated the community. "Newspaper articles alone would not necessitate a change of venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusatory or denunciatory statements, that a fair and impartial trial was impossible." Oryang v. State, 642 So.2d 979, 983 (Ala.Cr.App.1993). The newspaper articles submitted by the appellant are predominantly factual summaries reporting that the trial judge had denied the appellant's motion for a change of venue, that the appellant's second trial would be held in Baldwin County, that the appellant had been convicted of capital murder in 1990, and that that conviction was overturned and a new trial ordered. The articles merely report the actual events as they progressed and were not sensational in any manner. They do not accuse or suppose, and they are not sensational or denunciatory.

"[A] change of venue must be granted only when it can be shown that the pretrial publicity has so `pervasively saturated' the community as to make the `court proceedings nothing more than a "hollow formality"' ... or when actual prejudice can be demonstrated. The burden of showing this saturation of the community or actual prejudice lies with the appellant."

Oryang, 642 So.2d at 983. The appellant has failed to prove that the community was so saturated with pretrial publicity as to make the court proceedings nothing more than "a hollow formality." 642 So.2d at 983.

The appellant has failed to satisfy the test set out in Grayson, because he has not proven that there existed actual prejudice against him or that the community was saturated with prejudicial pretrial publicity. Our review convinces us that the trial court did not abuse its discretion in denying the appellant's motion for a change of venue.

II

The appellant next contends that the trial court erred in denying his motion to suppress evidence of Underwood's television seized during the search of the travel...