Pace v. State

• Decision Date: 29 August 1997
• Citation: 714 So.2d 332
• Parties: Ex parte State of Alabama. (In re Levi PACE v. STATE). 1960029.
• Court: Alabama Supreme Court

Page 332

714 So.2d 332

Ex parte State of Alabama.

(In re Levi PACE v. STATE).

1960029.

Supreme Court of Alabama.

Aug. 29, 1997.

Rehearing Denied Nov. 14, 1997.

Bill Pryor, atty. gen., and Joseph G. L. Marston III, asst. atty. gen., for petitioner.

J. Timothy Kyle, Decatur; and Arthur Orr, Decatur, for respondent.

BUTTS, Justice.

We granted the State's petition for a writ of certiorari in order to answer a question of criminal law we believe has been not fully resolved by the Court of Criminal Appeals. In Pace v. State, 714 So.2d 320 (Ala.Cr.App.1996), that court reversed Levi Pace's conviction for capital murder ¹ on the following grounds: (1) that black persons were discriminated against in the selection of grand jury forepersons in Morgan County and Pace's indictment should have been dismissed by the trial court; ² (2) that the trial court should have struck two prospective jurors for cause based on their answers to questions during voir dire that indicated they would have voted to impose the death penalty even if the court's instructions called for a sentence of life imprisonment without parole under the facts of the case; (3) that when Pace indicated to the trial court that he wanted to represent himself during arraignment the trial court should have held a hearing on Pace's request and the court erred in unilaterally denying it; and (4) that the trial court erred in admitting into evidence during the penalty phase of the trial a case action summary sheet indicating that Pace had previously been charged with murder, that on that previous charge he had pleaded not guilty, and that that charge had been dismissed.

I.

This case has had an unusual history in the Court of Criminal Appeals. In a May 26, 1995, opinion, that court remanded the case for the trial court to hold a hearing, in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), regarding Pace's allegation that the prosecutor's strikes of black prospective jurors during voir dire examination was motivated by racial reasons. That opinion was later withdrawn on application for rehearing; the substituted opinion, released on July 28, 1995, remanded the case for not only a Batson hearing, but also a hearing on Pace's allegation that black persons had been systematically discriminated against in the selection of grand jury forepersons in Morgan County solely on the basis of their race. In that opinion, the Court of Criminal Appeals stated, with regard to the issue involving the selection of the grand jury foreperson: "There is no question that [Pace's] motion [to dismiss his indictment] was not timely. However, this is a case involving the death penalty and this court is obliged to search the record for plain error. Rule 45A, Ala.R.App.P." 714 So.2d at 320.

On return to the Court of Criminal Appeals following remand, that court on July 3, 1996, issued an opinion reversing Pace's capital murder conviction and his death sentence, based on his having proven racial discrimination in the selection of grand jury forepersons in Morgan County, and based on other findings of reversible error. In relation to the issue involving the selection of the grand jury foreperson, the court quashed Pace's capital murder indictment and stated that he could be reindicted. However, in that opinion the Court of Criminal Appeals did not say whether it had applied a "plain error" analysis to the issue involving discrimination in the selection of the grand jury foreperson. On application for rehearing, the Court of Criminal Appeals, on September 27, 1996, withdrew its July 3, 1996, opinion and substituted a new opinion; that September 27, 1996, opinion also reversed Pace's conviction and sentence and quashed his indictment based on his showing of racial discrimination in the selection of grand jury forepersons. The September 27 opinion also failed to state whether the Court of Criminal Appeals had applied a "plain error" analysis to that issue.

The State contends that the Court of Criminals Appeals applied a "plain error" analysis to the issue involving discrimination in selection of grand jury forepersons, but that the error in the selection of the grand jury foreperson was not "plain error" and, therefore, that the Court of Criminal Appeals erred in reversing Pace's conviction on that ground and erred in quashing his indictment. We granted the State's petition for a writ of certiorari to determine whether, on the basis of that particular allegation of error, the Court of Criminal Appeals correctly reversed Pace's conviction and quashed his indictment. We also consider certiorari review necessary in this case to prevent confusion among the members of the bench and bar of Alabama in an important area of criminal law.

Based on our own review of the trial court record, we conclude that Pace's motion to dismiss his indictment based on alleged racial discrimination was not timely. Rule 12.9, Ala.R.Cr.P., requires that a motion to dismiss an indictment be filed before the defendant is arraigned on the charge stated in the indictment. The only exceptions in Rule 12.9 to the pre-arraignment timing for moving to dismiss an indictment are that when the trial court sets a later deadline or when counsel is appointed for the first time at arraignment, an additional reasonable length of time is allowed for the defendant to move to dismiss the indictment. In this case, the trial court did not set a post-arraignment deadline for Pace to move to dismiss his indictment, and, although Pace had a change of appointed counsel after his arraignment, his original appointed counsel was appointed before arraignment and had the opportunity to file a motion to dismiss Pace's indictment prior to arraignment, but did not do so.

Generally, absent a timely objection to an alleged error and a ruling by the trial court, there is nothing for this Court to review. Biddie v. State, 516 So.2d 846 (Ala.1987). However, because Pace was sentenced to death following his conviction on the charge of capital murder, his failure to make a timely motion to dismiss his indictment does not preclude our review of this issue--in death penalty cases, both the Court of Criminal Appeals and this Court take notice of any "plain error." Rules 39(k), 45A, Ala.R.App.P.

II.

In Lee v. State, 631 So.2d 1059 (Ala.Cr.App.1993), and Locke v. State, 631 So.2d 1062 (Ala.Cr.App.1993), the Court of Criminal Appeals held that a criminal defendant's constitutional right to equal protection under the law has been violated if racial discrimination occurred in the selection of the foreperson of the grand jury that returned the indictment and that that error requires that the indictment be quashed. Quoting from Johnson v. Puckett, 929 F.2d 1067 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991), the Court of Criminal Appeals also held that because the denial of equal protection caused by such discrimination is an injury to society as a whole, it does not matter whether the defendant is a member of the racial group discriminated against. ³

In both Lee and Locke the defendants had been convicted of murder, but neither had been sentenced to death. In Lee and Locke, a timely objection preserved for appellate review the issue of discrimination in the selection of grand jury forepersons; thus, the issue whether discrimination in the selection of grand jury forepersons is "plain error" under Rule 45A was not decided by the Court of Criminal Appeals in those cases. Nor has this Court previously determined whether such discrimination constitutes the "plain error" we are required by Rule 39(k), Ala.R.App.P., to recognize.

Plain error is "error that has or probably has adversely affected the substantial rights of the petitioner." Rule 39(k). "[T]he plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, n. 14, 102 S.Ct. 1584, 1592, n. 14, 71 L.Ed.2d 816 (1982).

A.

We take guidance from two landmark opinions from the United States Supreme Court that discussed discrimination in the selection of grand jury forepersons. In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the Supreme Court assumed, without deciding, that discrimination in the selection of a grand jury foreperson from among the members of the grand jury violates a criminal defendant's rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and requires that a conviction be set aside. However, several years later, in Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984), the Supreme Court held that discrimination in the selection of a federal grand jury foreperson did not violate the Due Process Clause of the Fifth Amendment. The Supreme Court stated that when the role of a grand jury foreperson is merely ministerial in nature, "discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant's due process right to fundamental fairness." 468 U.S. at 345, 104 S.Ct. at 3096-97. In discussing the Rose opinion, the Hobby Court noted that the role of the Tennessee grand jury foreperson at issue in Rose differed substantially from the ministerial role of a federal grand jury foreperson in that the Tennessee foreperson is charged with substantial power, including the duty to assist the district attorney in investigating the crime and the privilege of a virtual veto over the indictment process. The Hobby Court distinguished Rose as follows:

"Given the nature of the constitutional injury alleged in Rose [equal protection], the peculiar manner in which the Tennessee grand jury...