Pogue v. State, 2 Div. 340
Citation | 429 So.2d 1159 |
Decision Date | 01 February 1983 |
Docket Number | 2 Div. 340 |
Parties | William Carey POGUE v. STATE. |
Court | Alabama Court of Criminal Appeals |
Richard S. Jaffe and L. Dan Turberville, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
The defendant was indicted and convicted for the attempted murder of William J. Akin. Sentence was twenty-one years' imprisonment. Three issues are presented on appeal.
The defendant argues that his conviction is due to be reversed because one juror was not a resident of the county in which he was tried.
After the jury returned its verdict, it was established that juror Willie Richardson was not a resident of Pickens County. Richardson testified that he had moved just over the county line into the adjoining county about three years ago. He had previously resided in Pickens County for fifty years or more.
Richardson stated that before trial he had told the Sheriff that he did not live in the county. Richardson testified that when he told the Sheriff he was not a resident, the Sheriff said, He also testified that on voir dire he raised his hand when the judge asked about residency in qualifying the venire.
The Sheriff testified that Richardson never told him he was a resident of Lamar County.
The trial judge denied the motion for a mistrial finding that every effort had been made to get the jurors to answer the questions on voir dire and that "it was an oversight on the part of the juror or that he did not understand the importance and didn't come forward and this Court does not see that it could be prejudicial to the defendant."
Defense counsel only discovered Richardson's true residence when he polled the jury after they had returned their verdict.
In brief, defendant's appellate counsel acknowledges that a list of prospective jurors was provided trial counsel. This list gave Richardson's address as "P.O. Box 446, Millport." This Court can take judicial notice of the fact that Millport is in Lamar County. Hall v. State, 213 Ala. 325, 104 So. 826 (1925).
In Bufford v. State, 382 So.2d 1162, 1172-73 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980), this Court held that the denial of a motion for new trial, based on the ground that one juror was not a resident of the county in which the offense was committed, was not error in the absence of a showing of prejudice to the accused.
Although the incompetency of a juror because he is not a resident of the county in which the trial was had is ground for a challenge for cause, " 'the right to challenge ends, when the persons selected are sworn as jurors.' " Carson v. Pointer, 11 Ala.App. 462, 465, 66 So. 910 (1914), quoting from Henry v. State, 77 Ala. 75, 77 (1884). Carson held that although a juror on his voir dire examination by the court stated that he was a resident of the county, and the appellant did not discover the contrary until after the verdict, the verdict could not then be impeached. See also the following from Batson v. State, 216 Ala. 275, 280, 113 So. 300 (1927).
Golden v. State, 39 Ala.App. 361, 370, 103 So.2d 52, cert. denied, 267 Ala. 456, 103 So.2d 62 (1958), "pretermit(ed) any consideration as to whether or not Carson v. Pointer, ... is still valid" since the question was unlikely to arise on a new trial. Because "(t)he decisions of the supreme court shall govern the holdings and decisions of the courts of appeals", Alabama Code Section 12-3-16 (1975), Carson must be upheld.
In this case there is an additional reason why the rule of Carson should stand. Here, the juror truthfully answered the judge's question. His response was not noticed by the prosecutor, the defendant or the trial judge. However, his proper address was given on the list of prospective jurors. When defense counsel discovered the ground for challenge he had no more information before him than he did when he accepted the jury. Since the objection could have been discovered with the exercise of reasonable diligence at the time the jury was being qualified, it does not constitute a proper ground...
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