Pardue v. State

• Decision Date: 29 September 1989
• Docket Number: 3 Div. 997
• Citation: 571 So.2d 320
• Parties: Michael R. PARDUE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 320

571 So.2d 320

Michael R. PARDUE v. STATE.

3 Div. 997.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

Rehearing Denied Nov. 17, 1989.

Everette A. Price, Jr., Brewton, for appellant.

Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Michael R. Pardue was convicted on all counts of a four-count indictment charging escape in the second degree, burglary in the first degree, theft of property in the first degree, and theft of property in the second degree. He was sentenced, as a habitual offender to 10 years on the escape conviction, life without parole on the burglary conviction, life on the first degree theft conviction, and 20 years on the second degree theft conviction. In his brief on appeal, ¹ the defendant's appointed counsel raised 21 issues for review. His brief is little more than a "grocery list" of alleged errors, as 13 of those issues are neither argued nor supported with citations to authority.

Citing Vinzant v. State, 462 So.2d 1037 (Ala.Cr.App.1984), the attorney general contends that the defendant has waived 13 issues because he has cited no legal authority for those particular issues. If we accept his argument and hold that the defendant has waived the issues for which he has cited no legal authority, under the facts and circumstances of this particular case, we are absolutely compelled to the inescapable conclusion that the defendant has been denied his constitutional right to the effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Annot. 15 A.L.R. 4th 582 (1982). In order to avoid that result, we will not view any argument raised in brief as having been waived on appeal. However, we will not address every issue raised by the defendant for, after review, we have determined a number of those issues to be frivolous and totally without merit. We now address those issues which warrant our attention.

Pardue was an inmate assigned to work under the supervision of the livestock managers of the prison farm at G.K. Fountain Correctional Center. On March 31, 1987, he left his assigned work area on horseback and rode to a residence 2 1/2 miles south of the prison. The house was owned by the State of Alabama and was used as the residence of Fountain Assistant Warden Arnold Holt.

Pardue broke into the house, took a .357 magnum pistol, a set of car keys, and Warden Holt's 1984 Chevrolet Corvette automobile. A short time later, the car ran out of gas and Pardue stopped at a service station. He traded the pistol for gas money and drove away. He was apprehended later the same day and was returned to the prison, where he gave a full confession. In his confession, Pardue stated the following:

"I rode up to the Holt house and didn't see Mrs. Holt's car. I knew that she always went and got the kids and I knew she was gone because it was about 2:55 p.m. at the time.... I took the pistol for the money. I had no plans to take one until I saw it."

At trial, a number of correctional employees testified to Pardue's good conduct and work record. Pardue's defense was that he escaped due to the mental anguish and anxiety created when he was transferred from the Trusty Barracks (formerly the Escambia Work Center) to Fountain Correctional Center and because he had been informed that his parole was going to be denied. While he was at the Trusty Barracks, Pardue had been granted a weekly eight-hour pass to visit his wife in the community. After he was transferred to Fountain, he was not given that privilege even though he still maintained his job working with cattle and horses at the state farm.

I

The defendant claims that the court erred by denying his challenge for cause to four prospective jurors who were related to employees of the Department of Corrections. He first challenged two jurors related to correctional officer Jessie English. English was one of the defendant's immediate supervisors and the affiant on the warrant for defendant's arrest for escape. One of the jurors was English's son-in-law and the other juror was the aunt by marriage of English's son. Defendant also challenged two additional jurors whose husbands were employed at Fountain Correctional Center but who, apparently, had no direct connection with the prosecution of these offenses.

Section 12-16-150(4), Code of Alabama 1975, provides that it is a ground of challenge for cause that a prospective juror "is connected by consanguinity within the ninth degree, or by affinity within the fifth degree, ... either with the defendant or with the prosecutor or the person alleged to be injured." The "person alleged to be injured" in this case was assistant warden Arnold Holt. None of the challenged jurors was related to him. The Department of Corrections was not a "party" to the criminal prosecution here, see Nettles v. State, 435 So.2d 146, 149 (Ala.Cr.App.1983), Ex parte Nettles, 435 So.2d 151 (Ala.1983) (fact that veniremen were members or employees of School Board did not constitute a valid ground for challenge for cause in prosecution for receiving stolen meat, the property of the School Board), and employment of a juror by the same entity that employed the victim does not automatically disqualify the juror for cause, Carlton v. State, 415 So.2d 1241 (Ala.Cr.App.1982). See also Beasley v. State, 337 So.2d 80 (Ala.Cr.App.1976) (fact that juror was a professor at college attended by victim did not constitute ground of challenge for cause).

"In a prosecution for first-degree murder while serving a life sentence, which involved a killing after the defendant had escaped from prison, the trial court properly disallowed a challenge for cause to a prospective juror who was a retired prison employee. Thigpen v. State, 355 So.2d 392, 398 (Ala.Cr.App.), affirmed, 355 So.2d 400 (Ala.1977). See also Glenn v. State, 395 So.2d 102, 107 (Ala.Cr.App.), cert. denied, Ex parte Glenn, 395 So.2d 110 (Ala.1981) (In prosecution for assault with intent to murder power company employee, trial judge did not abuse his discretion in overruling defendant's challenge for cause of juror who was also employed by the power company, in that such employment, when juror did not know assaulted party, did not prima facie indicate interest or bias on the part of the juror)." Nettles v. State, 435 So.2d at 149.

To justify a challenge for cause there must be a statutory basis or some matter which "imports absolute bias or favor" and leaves nothing to the discretion of the trial court. Wyatt v. State, 36 Ala.App. 125, 139, 57 So.2d 350 (1951), cert. denied, 257 Ala. 90, 57 So.2d 366 (1952). "Because a prospective juror is engaged in a particular business or occupation in no way imports absolute bias on his part, and falls far short of reasonably creating any disqualification." Finley v. State, 36 Ala.App. 56, 52 So.2d 167 (1951). See also Johnson v. State, 36 Ala.App. 203-204, 54 So.2d 84 (1951) (jurors in case involving theft of a bull not disqualified because they were members of Cattlemen's Association); Nettles v. State, supra, at 150 (juror who was third cousin of arresting officer and main witness for the prosecution was not due to be removed for cause). Moore v. State, 488 So.2d 27, 32 (Ala.Cr.App.1986) (juror married to uncle of arresting officer not subject to challenge for cause).

Here, upon learning of the relationship of the four challenged jurors to employees of the Department of Corrections, the court inquired whether there were any venirepersons whose relationship "would ... in any way affect [their] ability to render a fair and impartial verdict in this case." No prospective juror responded.

"Ordinarily a juror is not disqualified where it appears that he is willing to follow the instructions of law given by the trial court and is able to decide the case impartially according to the evidence not withstanding his scruples. The determination of this question is based on the juror's answers and demeanor and is within the sound discretion of the trial judge." Barbee v. State, 395 So.2d 1128, at 1130-31 (Ala.Cr.App.1981).

Because there were no statutory grounds in the instant case upon which to base a challenge for cause, and there was no indication that any of the challenged jurors entertained absolute bias or favor, the court acted within its discretion in denying the challenge for cause. Moore v. State, 488 So.2d at 32.

II

The defendant contends that the trial court erred by denying his motion for a psychological examination. The defendant filed a pro se "Motion for Pretrial Sanity Hearing and/or Psychological Evaluation" 4 1/2 months before trial. It was continued and never heard or ruled on. Then, immediately before trial, the following occurred:

"MR. PRICE [defense counsel]: There are certain outstanding motions pending before the Court that have been filed in this case primarily by the Defendant, and that we have asked that the Court rule on those motions before we proceed or during this trial for the record.

"THE COURT: The Court's ruling is that any outstanding motions are taken under advisement by the Court and any motions that have been filed by the Defendant and which have not been adopted by his attorney, the Court treats those as not having been filed. They are not of record as far as the Court is concerned. If you find that there is a particular motion that has been filed by the Defendant that has particular merit, I will at least consider it sometime during the trial. All the Court is saying is I am not closing the door on reconsidering my ruling."

At the close of all the evidence, defense counsel informed the court that he wished, at that time, to adopt the defendant's pro se motion for a sanity evaluation. The court denied the motion.

The failure to request a hearing or a ruling on the motion earlier was not a waiver of the issue of defendant's mental state, Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966...