Pace v. State

• Decision Date: 25 April 2003
• Parties: Levi PACE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

904 So.2d 331

Levi PACE v. STATE of Alabama.

CR-01-1249.

Court of Criminal Appeals of Alabama.

April 25, 2003.

On Return to Remand April 30, 2004.

Rehearing Denied June 18, 2004.

Certiorari Denied January 14, 2005.

Wilson Myers, Sr., Gulf Shores; and Christopher Wayne Adams, Atlanta, Georgia, for appellant.

William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appellee.

Alabama Supreme Court 1031519.

WISE, Judge.

The appellant, Levi Pace, was indicted for murder made capital because it was committed during a robbery in the first-degree.¹ See § 13A-5-40(a)(2), Ala.Code 1975. He was convicted of the lesser-included offense of murder, a violation of § 13A-6-2, Ala.Code 1975, and was sentenced to life imprisonment. The circuit court ordered that Pace's sentence was to run consecutively with sentences he was serving as a result of other convictions.

On March 12, 2002, Pace filed a motion for a new trial. That same day, Pace also filed a notice of appeal to this Court. The circuit court did not rule on Pace's new-trial motion; instead, the court allowed the motion to be denied by operation of law.²

In his motion for a new trial, Pace raises numerous allegations of error. Of particular concern are Pace's following contentions regarding potential juror misconduct:

"10. Furthermore, during the sequestration, Mr. Pace was prejudiced by the juror's access to improper information and misconduct. For instance, while sequestered [juror J.B.] was allowed to call a friend, and the friend told her about a newspaper article on the case. The friend told [juror J.B.] that the article said Mr. Pace had been previously convicted for the crime for which he was on trial, and the conviction was reversed due to an issue involving race and the grand jury. See affidavit of Investigator Kate Weisburd. Further, after learning this from her friend, [juror J.B.] sought to confirm the information and asked the bailiff whether Mr. Pace had previously been tried and convicted for this offense. The bailiff told her that the bailiff could not answer but instructed her to ask the other jurors if this was Mr. Pace's second trial and if the first had been reversed. [Juror J.B.] heeded this instruction, and her other jurors confirmed that Mr. Pace had been previously convicted. This answer by the bailiff is prejudicial as it encourages [juror J.B.] to seek improper information from other jurors.

"11. Mr. Pace was denied a fair trial due to the juror misconduct of [juror O.F.]. [Juror O.F.], and all the jurors, was voir dired about whether his racial attitudes would influence him in reaching a verdict in the case, and he denied having any racial views that would impact his ability to be a fair and impartial juror. After defense witnesses Oliver and Clyde Cook, African-American men, testified, [juror O.F.] told other jurors that he does not believe a `word those niggers said.' See attached statement of alternate juror [J.M.], page 4. The implication is that he would have believed the witnesses if they were white. This is improper and premature deliberation. Additionally, it is clear that [juror O.F.] harbors racist views and was not honest in voir dire about his racial views. Had [juror O.F.] been honest in voir dire, he would have been stricken for cause or stricken by the defense. This dishonesty prejudiced Mr. Pace's case as Mr. Pace is entitled to a jury free of concealed racial bias and a verdict free from racism."

(C. 1346-47.)

In support of his motion for a new trial, and as an addendum to that motion, Pace submitted the March 10, 2002, statement of alternate juror J.M., and an affidavit from Kate Weisburd, the investigator who interviewed juror J.B. concerning her telephone conversation with her friend and her subsequent conversation with the bailiff assigned to supervise the sequestered jury.

The State did not refute any of the allegations in Pace's motion for a new trial and supporting documents. The motion was denied by operation of law, without any ruling by the circuit court.

In Edgar v. State, 646 So.2d 683, 687 (Ala.1994), the Alabama Supreme Court addressed a similar situation:

"We hold that where, as here, a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala.R.Crim.P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion."

See also Benjamin v. State, 889 So.2d 610, 612 (Ala.Crim.App.2003); McDade v. State, 864 So.2d 377, 378 (Ala.Crim.App.2002).

While we express no opinion as to the merits of Pace's other grounds in his motion for a new trial, we note that the two allegations set out above cause this Court grave concern. Indeed, this Court has previously determined that a juror's failure to respond truthfully to questions during voir dire warranted a new trial. See, e.g., Tomlin v. State, 695 So.2d 157, 175-76 (Ala.Crim.App.1996); State v. Freeman, 605 So.2d 1258, 1259-60 (Ala.Crim.App.1992). Moreover, "[j]uror misconduct will justify a new trial when it indicates bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law." Whitten v. Allstate Ins. Co., 447 So.2d 655, 658 (Ala.1984). Although in a different context, the Supreme Court recently noted: "`"[W]e are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged."'" Ex parte Pettibone, 891 So.2d 278, 279 (Ala.2003) (quoting Frazier v. State, 632 So.2d 1002, 1007 (Ala.Crim.App.1993) (quoting in turn United States v. Attell, 655 F.2d 703, 705 (5th Cir.1981))).

Based on Edgar, we remand this case for the circuit court to make specific, written findings of fact as to each claim Pace raised in his motion for a new trial. On remand, the circuit court should require the State to respond to the motion and should conduct a hearing on the motion. If the circuit court determines that Pace is entitled to relief on his claims, then the court may grant such relief as it deems appropriate.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include the State's response, a transcript of the proceedings on remand, and the circuit court's specific written findings of fact.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

On Return to Remand

WISE, Judge.

Levi Pace was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life imprisonment.

Pace was originally indicted for capital murder on July 2, 1992, for shooting and killing Jerry Hargrove, the desk clerk at the Days Inn motel in Decatur, during a robbery in December 1991. (C. 29-30.) He was found guilty and sentenced to death. That conviction was overturned by this Court. Pace v. State, 714 So.2d 320 (Ala.Crim.App.1996), rev'd in part and remanded, 714 So.2d 332 (Ala.1997), opinion on remand, 714 So.2d 340 (Ala.Crim.App.1998). On July 28, 1998, Pace was re-indicted for capital murder, a violation of § 13A-5-40(a)(2), Ala.Code 1975 (murder made by capital because it was committed during a robbery); he was convicted of the lesser-included offense of felony murder on February 16, 2002. The trial court sentenced Pace to life imprisonment, that sentence to be served concurrently with other sentences Pace was serving in unrelated cases. (R. 2590-91.) Pace appealed, and we remanded this cause to the trial court with directions that it address Pace's motion for a new trial. Pace v. State, 904 So.2d 331 (Ala.Crim.App.2003). The trial court entered an order on September 15, 2003, denying Pace's motion for a new trial. This cause is now before us on the merits of Pace's arguments asserted in his brief on appeal.

I.

Pace raises three arguments relative to alleged juror misconduct or bias: (A) He contends that the trial court erred when it failed to strike for cause prospective juror J.D., based upon J.D.'s knowledge of the case garnered before trial from newspaper articles; (B) he argues that juror O.F. was racially biased, which denied him a fair trial; and (C) he contends that juror J.B. impermissibly obtained information from an outside source, which also denied him a fair trial.

Because Pace was charged with capital murder, the trial court went through extensive efforts to qualify the jury panel. The voir dire process, which lasted more than three days, represents over 1,000 pages in the record. (C. 12; R. 466-1486, 1516-36.) The jury panel was initially composed of about 90 persons. After the initial questioning by the trial court, the jury panel was pared down to about 65 persons, who were then divided into 5 panels. The first three panels were voir dired by the trial court and the attorneys, and after several veniremembers were removed for cause, the pool of jurors was reduced to 36 persons. Each side was granted 12 peremptory strikes, with the last two strikes being alternates. (C. 1301-02, 1304-05; R. 470, 479, 520, 523, 526-28, 567, 807, 1111, 1525, 1527.) Jurors J.D. and O.F. were on panel one; juror J.B. was on panel two. Pace used one of his peremptory strikes to remove juror J.D., but jurors O.F. and J.B. were not struck by either side; they both served on the jury. (C. 1301-02; R. 525, 527, 1533.)

We recently addressed similar issues in DeBruce v. State, 890 So.2d 1068, 1077-78 (Ala.Crim.App.2003), in which we stated:

"When

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