Parish v. State, 8 Div. 258
| Decision Date | 23 July 1985 |
| Docket Number | 8 Div. 258 |
| Citation | 480 So.2d 29 |
| Parties | O.C. PARISH v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Robert E. Patterson, Huntsville, for appellant.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
The appellant, O.C. Parish, was indicted and convicted for the offenses of theft of property in the first degree, as proscribed by § 13A-8-3, Code of Alabama 1975, and theft of property in the third degree, as proscribed by § 13A-8-5. He was consequently sentenced for the first degree theft conviction to imprisonment for a term of life pursuant to the Habitual Felony Offender Act. For his conviction for third degree theft, Parish was sentenced to imprisonment for a term of 12 months, to run consecutively with his sentence for the first degree conviction.
Parish contends that the trial court erroneously denied his motion for mistrial made on the ground that juror Derivaux failed to disclose during voir dire examination her possible acquaintance with him, thus denying him his right to an informed exercise of his peremptory strikes. After the prosecution had rested, Mrs. Derivaux informed the court that, although she had no recognition of Parish during the voir dire examination, she later recognized the defendant's name. During a hearing on this issue, Mrs. Derivaux explained that, after the defendant's name was said several times and when a police officer who was testifying said the name, she recognized it. It appears that she informed the trial court of her recollection at the earliest possible time.
Upon the trial court's examination, Mrs. Derivaux testified that when she worked at the Mental Health Center, she received telephone calls from a man by the same name as the defendant, and she also typed psychologicals on him. She remembered him as a "threatening, troubled client." However, she cautioned that the person of whom she was thinking might not have been the defendant. Mrs. Derivaux further testified that her only contact with the man was by phone and that, although she recognized his name, she did not recognize his voice or his face. In substance, she assured the court that none of the phone calls or psychologicals pertained to the guilt or innocence in this particular case; that she did not intend to inform her fellow jurors of this information; that she would consider the evidence that came from the stand and the law as instructed by the court; and that she would disregard her recollections. Upon this testimony, the court denied Parish's motion and allowed Mrs. Derivaux to continue serving as a juror.
Certainly, we recognize that parties have a right to have questions answered truthfully by prospective jurors to enable wise and informed exercise of their peremptory strikes and that when jurors fail to answer questions correctly, the parties are denied the exercise of that right. See O'Leary v. State, 417 So.2d 232, 240 (Ala.1982), cert. denied, 463 U.S. 1206, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983). However, a review of the voir dire examination does not reveal any question that juror Derivaux answered falsely by failing to remember and reveal her limited contact with a man by the same name as the defendant. The questions asked by the trial court did not call for the disclosure of such information. The questions asked by the defense counsel and the prosecutor are not included in the record before us. Plainly, it is the appellant's burden to see that a correct record is filed. Robinson v. State, 444 So.2d 884 (Ala.1983). Furthermore, the record does not imply that Parish's right to fully question the prospective jurors was abridged. Thus, we must assume that no question was asked concerning the juror's acquaintance or contact with the defendant. Unless a juror is asked a question which applies to him in a manner demanding response, it is permissible for a juror to remain silent; the juror is under no duty to disclose. Thomas v. State, 338 So.2d 1045 (Ala.Cr.App.1976); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974). 1 In Davis v. State, 51 Ala.App. 200, 283 So.2d 650 (1973), the lower court denied the appellant's motion for mistrial predicated upon the failure of a prospective juror to reveal certain information during voir dire. In reviewing the appellant's contention that this ruling was error, the court, in observing that no specific question had been asked to elicit the undisclosed information, stated the following:
51 Ala.App. at 202, 283 So.2d at 652.
It has been stated by our supreme court that "[t]he failure of a party to test prospective jurors, as to matters which might disqualify them, operates as a waiver of the peremptory right to a new trial on that account." Parkinson v. Hudson, 265 Ala. 4, 88 So.2d 793, 797 (1956) (citing Jackson v. McFadden, 260 Ala. 109, 69 So.2d 286 (1953)). Counsel for Parish waived any claim of prejudicial error. Vickers v. Howard, 281 Ala. 691, 208 So.2d 72, 74 (1968); Pearson v. State, 343 So.2d 538 (Ala.Cr.App.1977). See also Leach v. State, 245 Ala. 539, 18 So.2d 289 (1944); Law v. State, 407 So.2d 572, 575 (Ala.Cr.App.1981); Pelham v. State, 24 Ala.App. 330, 134 So. 888, cert. denied, 223 Ala. 155, 134 So. 890 (1931). 2
Moreover, even if the record disclosed that juror Derivaux had falsely answered or neglected to answer a question calling for the specified information, we would still find that the trial court properly denied Parish's mistrial motion. In Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981), the court reviewed the trial court's denial of the appellant's motion for mistrial grounded upon the same allegation as asserted in the instant case. In its review, the court applied principles utilized in reviewing the denial of a motion for new trial predicated on the same ground, which are as follows:
The supreme court in that case likewise held that the trial court's application of the probable prejudice test is subject to review only for abuse of discretion.' "
392 So.2d at 1264 (quoting Bufford v. State, 382 So.2d 1162, 1172 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980). See also Sheperd v. State, 57 Ala.App. 35, 39-40, 325 So.2d 551, 555 (1975), writ quashed, 295 Ala. 417, 325 So.2d 557 (1976).
In emphasizing that the trial court is in the best position to make findings on the question of probable prejudice, the court in Freeman suggested factors to aid the lower courts in their task of determining probable prejudice.
"Although the factors upon which the trial court's determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the...
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